A Family Court judge has given approval for a parental order to be made for a British couple following complications arising from a child being born to a surrogate in Minnesota, USA.
One of the child’s parents was awarded a step-parent adoption as part of an “administrative process”, but without the necessary checks for compliance to the Adoption and Children Act 2002 under British law.
The child, referred to as Lucia (not her real name), was born to a surrogate in Minnesota, USA, in May 2025.
The applicants for a parental order in Re L (Section 83 ACA and Surrogacy), pursuant to section 54 of the Human Fertilisation and Embryology Act 2008, for Lucia, are a same-sex married couple who live in London, known in the court proceedings as A and B.
B is Lucia’s biological mother. Her eggs were used to create an embryo, with sperm from a donor, and transferred to the surrogate, who became pregnant in September 2024.
A step-parent adoption order for Lucia by B was made via an “administrative process” when the surrogate gave up her parental rights, and when a Minnesotan court removed her husband from the child’s birth certificate.
In the US, Lucia’s birth was initially registered in the surrogate and her husband’s names. A remote hearing in Minnesota in June 2025, attended by all four adults, established B as Lucia’s biological parent, initially along with the husband, and then by virtue of a step-parent adoption order, A as Lucia’s second legal parent in place of the husband.
A new birth certificate was issued reflecting the orders of the District Court of Minnesota.
The step-parent adoption order caused a “preliminary complication” when Lucia was brought back to the UK by her parents, because it falls outside the apparent scope of section 83 (s83) of the Adoption and Children Act 2002 and its associated regulations under UK law.
In his judgment, The Honourable Mr Justice Cusworth said the parental order was unopposed but said “it is accepted by the applicants that the requirements of the relevant regulations [pursuant to s83] have not been complied with” and raised the risk of “criminal sanctions”.
Justice Cusworth also conceded that “they could not have been complied with”.
S83 is designed to prevent UK residents from bringing children from abroad into the UK for adoption without undergoing strict local authority vetting.
The Minnesotan legal process involved A becoming Lucia’s legal parent by means of what the judge described as “an administrative process” during which “in effect, a step-parent adoption order” took place “administratively rather than as the result of the standard process for seeking such an order”.
For example, there was no social worker investigation or report and other usual procedural steps for obtaining a step-parent adoption order were explicitly waived by the judge.
Justice Cusworth acknowledged that the intention of the court process in Minnesota was “to extinguish the surrogate and her husband’s parenthood and parental rights and establish their own, prior to leaving Minnesota and returning to the UK”.
He explained that the 2002 Act specifically provides for regulations to be made by the Secretary of State that disapply s83 where the “British resident in question is a partner of a parent of the child” and “the prospective adopter is a partner of a parent of the child”.
The judge acknowledged that “because of the process chosen by a foreign state to effect a planned, legally agreed surrogacy, a British resident has found themselves engaging in a step-parent adoption process abroad in relation to their intended child”.
He concluded that s83 does not apply in this case, writing in a his judgement: “If Minnesota had a different mechanism to recognise legal parentage in a situation such as this, s83 would not be engaged. It cannot have been intended that, depending on how a foreign court describes orders recognising legal parenthood after a surrogacy arrangement, a parent may find themselves subject to potential criminal sanction on their return to this country.”
He also considered welfare analysis from CAFCASS said he “wholeheartedly endorses [the] conclusion that Lucia’s welfare requirements are plainly best met by making of a parental order in favour of the applicants, which I will do.”
