International Surrogacy and Adoption

If you are thinking of creating a family through a surrogacy arrangement overseas, it is essential to take expert legal advice before embarking on this journey. C & Anor v E (International Surrogacy and Domestic Adoption) [2025] EWFC 68  https://www.bailii.org/ew/cases/EWFC/HCJ/2025/68.html is a recent example of a case where the intended parents simply did not qualify to make an application for a parental order to become the legal parents of the child born to the surrogate for the simple reason that neither of them was genetically connected to the child. The only alternative was to apply for an adoption order which was had its own complications as the summary below explains.

Background

This case concerns an adoption application by a couple (C and D) for a child (G) born via surrogacy in Florida, USA, in March 2022. The applicants used both donor eggs and donor sperm, meaning neither has a genetic connection to G. The respondent surrogate mother (E) gave birth to G and consented to his adoption. G has lived with the applicants since birth, first briefly in the USA before they brought him to the UK in April 2022. The applicants are naturalised British citizens who sought adoption as they were ineligible for a parental order under the Human Fertilisation and Embryology Act 2008, which requires at least one applicant to have a genetic connection to the child.

Legal Issues

The court considered whether the adoption application contravened sections 83, 92 and 95 of the Adoption and Children Act 2002, which prohibit: bringing children into the UK for adoption without proper procedures; arranging adoptions outside proper channels; and making payments in consideration of adoption. The critical question was whether the applicants had a settled intention to adopt G when they entered into the surrogacy arrangement or brought him to the UK.

Evidence and Findings

While adoption was mentioned in the surrogacy documents as a possibility, the court found insufficient evidence that the applicants had a settled intention to adopt when entering the agreement or bringing G to the UK. The judge noted that the applicants made substantial payments to the surrogate ($46,130.32) and agency ($15,750), but accepted their statement that these were not given in respect of adoption. G was granted British citizenship in February 2023, and the adoption application was made in August 2024.

Judgment

Mr Justice MacDonald granted the adoption order, finding it in G's best interests. He determined that sections 83, 92 and 95 were not contravened on the facts of this case. The order would provide G with legal security and align his legal position in the UK with that in the USA, where the applicants were already recognised as his legal parents. The judge emphasised the applicants' commitment to ensuring G knows about his birth circumstances.

Broader Context

The judgment highlighted that there is no comprehensive international framework governing international surrogacy arrangements, unlike international adoption. The judge stressed that surrogacy cases using domestic adoption legislation must comply with all relevant provisions of adoption law, and that children conceived through surrogacy are not automatically exempt from these requirements. He outlined various potential difficulties arising from international surrogacy arrangements, including exploitation concerns, conflicts of law regarding legal parentage, and immigration issues.