B v C  EWFC 17;  1 F.L.R. 1392;  Fam. Law 533
Mrs Justice Lucy Theis.
Surrogacy is a particularly contentious aspect of family law. Assisted reproductive technologies have provided an alternative to adoption for many people to become parents.1 However for a parental order to be granted in a surrogacy agreement the Human Fertilisation and Embryology Act 2008 (the "2008 Act") requires that the applicant must be married, in a civil partnership, or an enduring same-sex or heterosexual partnership.2 As a consequence a single person seeking to create a family through a surrogacy agreement is restricted from doing so.3
A child (A) had been born to a woman (C) and her husband (D) as part of a surrogacy arrangement with a single man (B). B was the son of C and adopted son of D. B was a 26 year old single homosexual male who lived alone. B had wanted to start a family and a female relative had agreed to be a surrogate but had withdrawn due to medical reasons. C, with the support of D, offered to be a surrogate for her son. C, D and B received individual and group counselling and attended a clinic licensed by the Human Fertilisation and Embryology Authority (HFEA) where an embryo created with a donor egg and B's sperm was implanted into C. A lived with B from birth and B made an application for an adoption order on the day A was born with the consent of C and D.
- According to s.33(1) of the 2008 Act C was the mother of A and by virtue of 35(1) D was the father of A.
- S. 38(1) and (2) of the 2008 Act clarifies that where a person is to be treated as the father by 35(1) of the 2008 Act no one else is to be treated as the father. Consequently B could not be considered A's father.
- In spite of B's biological role to A s.48(1) of the 2008 Act negated his role as A's father because only the parents by virtue of s.33 and s.35 of the 2008 could be treated as such.
- In a surrogacy arrangement for a parental order to be granted to a person other than C or D s.54 of the 2008 Act requires to be fulfilled. S.54(2) requires that there are two applicants, either married or in a civil partnership or living in a family relationship which does not include those relationships within a prohibited degree of each other. Therefore B, as a single person, was prohibited from applying for a parental order under the 2008 Act.
- A was able to make an application for an adoption order with the leave of the court under s.51(1) of the Adoption and Children Act 2002 (the "2002 Act") because he was over the age of 21 and had obtained the consent of the court.
- S.92 of the 2002 Act outlines a restrictive criteria in organising adoptions a breach of which is a criminal offence. According to s.92 unless B was a relative as defined in s.144 of the 2002 Act an offence would have been committed in the arrangement of the adoption. S.144 includes a sibling to the child in question and as C and D were the mother and father of B and of A by virtue of s.31 and 35 of the 2002 Act B and A were siblings and no criminal offence had been committed.
- The welfare of A was the courts paramount consideration in determining whether an adoption order should be made.
- Could B as a single man obtain an adoption order in respect of A and what was their relationship in law?
- Had B, C and D committed a criminal offence in arranging the adoption of A?
- Was an adoption order in the best interests of A?
Theis, J granted the adoption order but noted that except for the close family relationship B, C and D would have been guilty of an offence under s.93 of the 2002 Act. The court's judgement included advice to single people seeking a child through a surrogacy arrangement to ensure they sought substantial legal advice before embarking on that route to parenthood. In coming to a decision the court had the welfare of the child as its paramount consideration.
The court noted that the arrangement the parties had entered into was highly unusual but entirely lawful. The provisions of the 2008 Act meant that A and B had the same parents and as such B met the conditions of s 92(4) of the 2002 Act in that he was a relative and no criminal offence was therefore committed by B, C or D in organising the private adoption of A by B. Finally, the welfare of A was the courts paramount consideration and by all reports B's care of A was very high and the application for an adoption order was supported by the local authority. Theis, J noted an adoption order would provide legal security to the relationship between A and B and secure A's long term welfare.
The 2008 excludes single parents from obtaining a parental order.4 However the 2008 Act permits a woman to become a single parent through artificial insemination with sperm provided through a HFEA licenced clinic.5 In addition the 2002Act permits adoption by a single person.6 Hutchinson and Rogerson note that given such considerations "it is difficult to understand what justifications or policy considerations exist to prevent a single applicant from applying for a parental order."7 The courts have indicated that although the "effect of a parental order is the same as an adoption order" in surrogacy arrangements a parental order is to be preferred.8 According to Theis, J the parental order more honestly reflects the intended family structure whereas an adoption order risks the creation of a "fiction regarding identity" which will require resolution during the course of family life.9 The unsatisfactory and contradictory nature of the legislation in regards to single parents seeking to create a family through a surrogacy arrangement is reflected in the case of B v C (Surrogacy: Adoption).10 There is no doubt that this is an area in urgent need of reform.
1 Petra Foubert 'Surrogacy, pregnancy and maternity rights: a missed opportunity for a more coherent regime of maternity rights within the EU' (2015) E L Rev 52.
2 Human Fertilisation and Embryology Act 2004 (the "2008 Act") s. 54.
3 Anne-Marie Hutchinson and Colin Rogerson 'Pitfalls for single parents in surrogacy' (2015) Family Law Week available accessed 22/7/2015.
4 The 2008 Act s.54.
5 The 2008 Act s. 41.
6 The 2002 Act s.51.
7 Anne-Marie Hutchinson et al (n. 3).
8 A and another v P and others 2011 EWHC 1738 (Fam) per Theis, J at 30.
9 AB v CT 2015 EWFC 12 per Theis, J at 4; Re A (A Child) 2015 EWHC 911.
10 2015 EWFC 17.