Court grants step-parent adoption order in surrogacy case for child's welfare and international recognition.
Introduction
The case [2023] EWFC 214 presents a detailed insight into the legal complexities surrounding step-parent adoption and parental orders within the context of surrogacy. This article critically analyses the court’s approach, with particular emphasis on the applicable legal principles involving recognition of international elements and the child’s welfare.
Key Facts
The case involves a surrogacy arrangement in Argentina that resulted in the birth of child H. H’s intended parents, E and L, are living in the UK, and E seeks a step-parent adoption order to secure legal parent status. The application is supported by all parties involved. E and L are both the child’s intended parents and are in a civil partnership. H was conceived using L’s gametes and a known donor egg, with R as the gestational surrogate. It is notable that both R and the egg donor, a cousin of E, have signed documents relinquishing any claim to H.
After living in the UK since H’s birth, intending parents only later realized the necessity of securing legal status in the jurisdiction. With the child’s welfare at the forefront, both the option of a step-parent adoption order and a parental order were considered, with the former being chosen due to its potential for international recognition, mainly to ensure H’s ability to acquire Italian citizenship through E.
Legal Principals
The judgment navigates through several legal tenets, intricately balancing between statutory provisions for adoption under the Adoption and Children Act 2002 (ACA 2002), human rights under Article 8 of the European Convention on Human Rights, and the implications of international recognition, particularly in Italy.
The court distills the principles from the landmark cases of Re P (Step-Parent Adoption) [2014] EWCA Civ 1174 and Soderback v Sweden, which weighed the interference with Article 8 rights in step-parent adoptions and established criteria for proportionality and necessity in such contexts. It draws a distinction between ‘stranger adoptions’ and ‘step-parent adoptions’ —highlighting the importance of the existing family unit and the child’s welfare throughout their life.
The court also examined the Human Fertilisation and Embryology Act 2008 (HFEA 2008) which outlines requirements for a parental order, specifically as it relates to children born out of surrogacy. However, in this case, a step-parent adoption order was found to be more beneficial for the child’s welfare over her lifetime, owing to the added recognition of her Italian heritage.
Outcomes
The court’s thorough consideration of the welfare checklist and other preliminary requirements concluded that H’s lifelong welfare needs were best met by a step-parent adoption order. Although a parental order might be the more conventional remedy in surrogacy cases, the step-parent adoption order was deemed to present significant welfare benefits, offering H the possibility of Italian citizenship and legal parentage with E.
In its decision, the court took into account that H was already living effectively with her intended parents since birth, and had formed a loving, established family unit with E and L. The surrogate mother had consented to the adoption and was not an active parent, factors that bore heavily on the court’s proportionality assessment in step-parent adoptions.
Conclusion
The case [2023] EWFC 214 reaffirms the UK courts’ commitment to child welfare as the paramount concern in surrogacy cases, while considering the necessity and proportionality of a step-parent adoption within the context of the existing family unit. It underscores the evolving nature of international family law and the nuanced approaches courts may take to reconcile domestic legal frameworks with the realities of internationally blended families. The judgment also serves as a precedent for the acceptance of step-parent adoptions in similar contexts where international recognition of parental status is a substantial factor in considering a child’s lifelong welfare.