What can go wrong with international surrogacy?

In March of 2026, Mr Justice Cusworth dealt with a case where an otherwise straightforward application for a Parental Order became more complex because of legal requirements in the jurisdiction where the child was born. Re L (S83 Adoption and Children Act 2002 and Surrogacy) [2026] EWFC 181  https://www.bailii.org/ew/cases/EWFC/HCJ/2026/181.html raised the issue of whether S83 ACA 2002 applied in a case where the applicants had been forced to proceed with a step parent adoption of their own child in Minnesota where the child was born. S83 ACA, along with associated regulations, applies to children brought to this country from overseas who are strangers to prospective adopters and creates a criminal offence in relation to the commercial adoption of such children.

Case Overview

This was an unopposed joint application by a married same-sex couple for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 concerning Lucia, born May 2025. Lucia was born in Minnesota, where the applicants were already recognised as her legal parents under state law, with notarised consents from the surrogate and her husband. Ms Callaghan of CAFCASS, the parental order reporter, unequivocally supported the making of the parental order.

Factual Background

A was born in the UK; B was born in an EU state, moved to the UK in her late teens, and was naturalised in 2018, holding dual nationality. After unsuccessful IVF, the applicants pursued US surrogacy using a California agency and Minnesota lawyers, matching with an experienced surrogate and her husband. They entered a surrogacy agreement in April 2024 for permitted expenses, embryo transfer occurred in September 2024, and Lucia was born slightly early in May 2025. Minnesota proceedings in June 2025 first recognised B as the biological parent with the husband, then replaced the husband with A via a step-parent adoption order, leading to a new birth certificate. The Minnesota process was administrative, with no social worker investigation or usual step‑parent adoption procedures, and the family then returned to the UK to live with Lucia.

Section 83 ACA 2002 Issue and Declaration

Section 83 ACA 2002 ostensibly applied because A, habitually resident in the British Isles, brought into the UK a child adopted abroad within 12 months without compliance with Regulations. Relying on B v B and Ors [2026] EWHC 97 (Fam) https://www.bailii.org/ew/cases/EWHC/Fam/2026/97.html the court adopted a purposive interpretation that section 83 was not intended to capture step‑parent adoption scenarios like this. MacDonald J's reasoning emphasised Parliament's focus on preventing exploitative international stranger adoptions, not step‑parent or analogous arrangements. The judge held that section 83 does not apply here where a foreign step‑parent adoption mechanism was used to effect a planned surrogacy and extinguish the surrogate's legal status. Compliance with the Adoptions with a Foreign Element Regulations 2005 was impracticable because surrogacy does not involve notifying a UK adoption agency and no UK adoption order was sought. The court reasoned it cannot be right that differing foreign mechanisms for recognising surrogacy parentage expose returning parents to potential criminal sanction. The court made a declaration that section 83 ACA 2002 does not apply to the facts of this case.

Section 54 HFEA 2008 Requirements and Welfare

Both applicants are over 18 and married since 2020.

The embryo was created in January 2023 using B's egg and donor sperm and transferred to the surrogate in September 2024.

The birth parents provided notarised, unequivocal consents and did not seek to attend the hearing.

Payments were 'in line with the payments made to experienced surrogates in the United States' as reported by CAFCASS.

The application was issued on 31 July 2025, within six months of birth.

Lucia lives with both applicants in London; A is a British national domiciled in England, and B has lived in the UK since 2003 and likely has a domicile of choice.

Considering section 1 ACA 2002, the court accepted CAFCASS's welfare analysis and found Lucia's lifelong welfare is best served by making the parental order.

Outcome

The court granted a parental order in favour of the applicants and issued a declaration that section 83 ACA 2002 does not apply.