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Surrogate pregnancy - single parent adoption

Single dad adopts surrogate baby born to his mother

The single father in the recent case B v C & Others (Surrogacy: Adoption) [2015] EWFC 17 (Fam) successfully obtained an adoption order which was the only means open to him to secure his legal relationship with his surrogate son. Alison Hunt of Park Square Barristers represented the father in this unique case in the Family Court before Mrs Justice Theis. The judgment opens the way for other single would-be parents to proceed in the same way, but it also highlights the very real pitfalls and uncertainty which await them in this difficult process. It raises questions about whether parental orders should be available to single applicants as they are for couples.

If you are interested in this topic, please note that Alison Hunt will be presenting a seminar on surrogacy law and related issues at Park Square Barristers in Leeds in the near future. Please contact our family clerks, Carrie and Claudine, for further information.

The facts

The facts of the case had not been previously encountered by the court. A single man (B) wished to become a father via surrogacy. His mother agreed to act as the surrogate mother and carry the baby. She became pregnant through fertility treatment using a donor egg and B’s sperm. As had always been the plan, B looked after the baby from the time of discharge from hospital and sought to formalise his relationship as legal parent.

Legal issues

  • B was not the baby’s father in the eyes of the law – rather, he was the baby’s brother because the two of them had the same legal parents. The husband of a married surrogate mother (here B’s father) is automatically regarded as the baby’s father, if he consented to the fertility treatment. Hence the need for B to obtain a court order recognising himself as the legal father.
  • A parental order, the means which a couple who commission a surrogate baby would use to achieve parenthood, is not available to a single applicant. There are possibly policy reasons for this – encouraging only couples, rather than single people, towards the difficult task of surrogate parenthood.
  • Adoption is available as route to legal parenthood in these circumstances, but this requires the child to have lived with applicant for 3 years – see s42(5) Adoption and Children Act 2002. The court’s permission is needed in order to make an application sooner

The court readily granted the necessary permission in this case as all parties wanted resolution of the case without delay. On Alison’s advice, B applied for and obtained a child arrangements order that the baby lives with B and a parental responsibility order to secure B’s position pending the court’s decision on the adoption application.

In due course, on the strong recommendation of social worker and guardian, the court made an adoption order, meaning that B became the baby’s legal father and reflecting the biological and emotional relationship which already existed. At the same time, B’s parents relinquished their parental responsibility for the baby and became his grandparents.

Potential pitfalls

Most obvious is the risk of the surrogate mother changing her mind, a risk which can arise in surrogacy cases generally. But here B was extra vulnerable because of his lack of rights or recognition in respect of his biological son.

In addition, the particular circumstances of this case (B having the baby in his sole care) gave rise to the risk of both B and his parents unwittingly committing criminal offences:

  • Firstly, under section 92 Adoption & Children Act 2002 there are restrictions on arranging an adoption. Breaching those restrictions is a criminal offence which would be committed in the circumstances of this case were it not for the fact of the close relationship between B and the baby – that is the relationship of being brothers, not the father/son relationship. This relationship exempts them. However, had it been another relative of B, such as a cousin, acting as surrogate and handing the baby to B to be adopted by him, then both of them would commit the offence. It carries 6 months imprisonment.
  • Secondly, the arrangement of one person caring for the baby, who is legally the child of another couple (as B did here), amounts to a private fostering arrangement under s66 Children Act 1989. There is a duty to notify the relevant local authority of such an arrangement coming into being – for very obvious and sensible reasons – remember Victoria Climbie was being privately fostered by her aunt without any authority being aware of that arrangement. Failure to notify the local authority is a criminal offence and makes the offender liable to a fine.

The risk of committing these criminal offences does not arise in circumstances in which the applicants are a couple with the intention to apply for a parental order to secure the position. Placement of the baby with the commissioning couple would not be an offence.

Conclusions

This landmark case raises many issues:

  • The decision may be criticised as having the effect of skewing family relationships, with parents becoming grandparents and brother becoming father. The contrary view is, of course, that the outcome corrected the legal position and made it reflect the reality – B is the biological father of the baby and now he is the legal father too. B’s mother is the baby’s biological grandmother and now she can take that role; she is no longer the baby’s legal parent .
  • Surely not every member of the public, nor every lawyer, would appreciate that behaving as the family did here amounts to committing criminal offences? The pathway to parenthood for a single person via surrogacy and adoption is legally and emotionally difficult enough without adding the risk of criminal proceedings. Mrs Justice Theis advises that anyone contemplating this “legal minefield” should take expert legal advice.
  • Finally, this case also highlights the differences in how single people and couples are regarded in relation to surrogacy. Many will say there are valid policy reasons – surrogacy is not an easy path to parenthood, especially for one person alone. B in this case had very strong support from his close, loving family, a fact which Mrs Justice Theis regarded as a “critical feature”. However, it is surely clear that single people are now going to use this route, even though achieving legal security in their status as parents is even more complicated for them than it is for couples. The case highlights the question whether these extra hurdles should be put in their way?