Re Z (Surrogacy: Step-parent Adoption)

Judgment has today been published in Re Z (Surrogacy: Step-parent Adoption).

Re Z is the first case involving an application for a step-parent adoption order from a non-biological parent to secure his legal parentage, having previously secured it by way of a parental order following a surrogacy arrangement, which was later rescinded.

The judge declined to make the adoption order, finding that the child’s welfare did not require her to override the surrogate’s lack of consent. Instead, the judge ordered that the child live with the non-biological father under a ‘lives with’ child arrangements order, while a standalone Parental Responsibility order was made in his favour.

Burgess Mee, led by partner Natalie Sutherland and assisted by Shaili Gohil-Desai acted pro bono for the applicants, instructing Ruth Cabeza and Mavis Amonoo-Acquah of Harcourt Chambers, who also acted pro bono.

Commenting on the ruling, Natalie Sutherland said:

“Our clients’ view is that the judge has erred in law by wrongly conflating the issue of contact and the ability to enforce contact orders with adoption. Moreover, she has not sufficiently considered all the relevant factors relating to the child’s lifelong welfare when balancing the pros and cons of adoption versus the status quo in order to determine whether the adoption order was required to meet the child’s lifelong welfare needs.

As a result of the judgment, the child has been denied a legal relationship with his non-biological father, who wishes to raise him – and be recognised in law as his father – for the rest of the child’s life. It doesn’t seem right that the surrogate – who, on her own case, wishes to play no part in parenting the child – has kept legal parentage.

Our clients are clearly very disappointed with the outcome and are considering their options, including whether or not to pursue an appeal.”

Natalie provided the following background to the case 

The clients are a same-sex male married couple who have a child through surrogacy, carried by a traditional surrogate in the UK. There is a complex history to this case, which involved the making of a parental order in the clients’ favour in August 2021 that was later overturned by the Court of Appeal in the case of Re C (surrogacy: consent) [2023] EWCA 16, handed down in January 2023, as it found that the surrogate’s consent to the parental order had not been given freely and unconditionally.

The result of that case was that the parental order was rescinded, and legal parenthood was removed from the non-biological father and reverted back to the surrogate. As a consequence of that decision, the child lived with his two fathers, as was always intended, but was a legal stranger to the non-biological father.

Our clients made an application for a step-parent adoption order. If made, this would have the effect of removing the legal parentage from the surrogate and conferring it on the non-biological father. The important difference between the laws surrounding parental orders following surrogacy and adoption orders is that the court has the power to make an adoption order even if a legal parent objects, providing that the child’s lifelong welfare requires the court to override the legal parent’s lack of consent. In comparison, the court does not have the power to make a parental order without the consent of the surrogate in any scenario.

The surrogate objected to the making of an adoption order, citing that she wanted to maintain her legal status so that she could have a relationship with the child via regular contact, and did not believe that our clients would abide by a contact order if an adoption order were made.

In a very disappointing judgment for our clients, the judge declined to make the adoption order, finding that the child’s welfare did not require her to override the surrogate’s lack of consent. Instead, the judge ordered that the child live with the non-biological father under a ‘lives with’ child arrangements order, while a standalone Parental Responsibility order was made in his favour.

In relation to contact, the judge did not consider that that frequency of contact advocated by the expert was in the child’s best interests and ordered direct unsupervised contact on only four occasions each year, with additional indirect contact. Further, the judge made a s91(14) barring order which prevents either party from making any further applications in relation to the child for a period of three years. This is an order that our clients sought and was opposed by the surrogate.

Whilst the surrogate wishes to see the child and remain his legal parent, she was content to have her Parental Responsibility curtailed so that only the two fathers can exercise their Parental Responsibility for the child to the exclusion of the surrogate, except for certain prescribed matters. The appropriate specific issue and prohibited steps orders were made to achieve this.