A judge for the family division of the High Court has given permission for a “blameless” couple who had fertility treatment in Sri Lanka to apply for an adoption order after it was discovered that the babies in their care were not biologically related to either of them.
Non-identical twins, who are now nearly seven months old, were born to a surrogate in Sri Lanka in December. The embryos had been understood to have been created using anonymously donated eggs and the man’s sperm.
After the children were born, the surrogate waived her parental rights to the children, although she is considered their only legal parent under UK law until a parental order has been made, or adoption finalised.
The couple, referred to in court proceedings as PP and QQ, are both of Sri Lankan origin but have lived in the UK for some years. They applied for a parental order for the twins in March, but DNA testing subsequently revealed that PP was not the children’s biological father.
The couple had already applied for British citizenship for the children and the babies are now resident in the UK, having spent their early months with the couple in Sri Lanka.
The clinic where the couple had treatment, Wish Fertility, had initially written to them confirming the man’s sperm had been used to create the embryos. After the results of DNA testing were received, however, the clinic said that donor sperm had been used, and that the parents had signed a form to this effect.
The judge remarked on the “inconsistencies” in the information provided by Wish Clinic and said the applicants were “blameless” while also praising the “outstanding care” the children have received.
The court documents show PP and QQ were “devastated” to realise that there was no biological link between the children and PP, but they remain “desperate to bring up the children, whom they adore”.
Mr Justice Peel approved the application to withdraw the parental order for the twins – which can only be made if one of the parents of children is biological – and also approved their request to apply for an adoption order, along with an application for a child arrangements order so the babies can remain with the couple during the adoption process.
“In my judgment, the applicants are blameless,” he said in his decision. “Neither of them is biologically related to the children, as a result of the actions of the clinic which used donor sperm rather than the sperm of PP. Whether this was an inadvertent error, perhaps as a result of poor internal processes, or was intentionally done (for whatever reason) is not clear. The fact that the clinic’s explanation for what happened is inconsistent has added to the pain of the applicants.”
He added: “Whatever the sequence of events, the applicants do not comply with s54(1)(b). The Parental Order process cannot continue. I therefore grant leave to them to withdraw the application.
“In this case, the children have lived with the applicants since birth. It was always intended that they would be brought up by the Applicants. The surrogate has given consent to the applications, and relinquished any legal rights. From everything I have read and heard, the applicants are giving the children outstanding care. They are the de facto parents of these young children who need permanence and stability.
He continued: “Adoption would confer legal parentage and parental responsibility. Lesser alternatives (child arrangements orders or special guardianship, for example) do not carry the same legal parentage rights. In my judgment, the application for an Adoption Order has real prospects of success and is in the interests of the children, and I will grant the applicants leave to apply.”
