Understanding international surrogacy and adoption

The case of C & Anor v E highlights the complex challenges parents face in international surrogacy arrangements

In the evolving landscape of family law, international surrogacy and adoption have become increasingly critical issues for courts and legal professionals. A key case exemplifying these challenges is "C & Anor v E" (2025), adjudicated by Mr Justice MacDonald in the Family Court. This case revolves around C and D, who sought an adoption order for their child, G, born through a surrogacy arrangement in the United States.

The international adoption of children operates under various legal instruments, with the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption being notable. However, non-convention adoptions, especially those involving surrogacy, often enter ambiguous territories within domestic laws, leading to numerous potential legal complications.

The court's primary concern was whether G, born in the USA, could be adopted in the UK under the circumstance that the surrogate mother, E, remained the legal parent according to UK law. Typically, the law requires that parents be biologically related to the child in question to apply for a parental order under the Human Fertilisation and Embryology Act 2008. Since C and D did not contribute genetically to G’s conception, they were ineligible for such an order and instead pursued an adoption order under the Adoption and Children Act 2002.

This case underscores not just the legal restrictions in England and Wales but also the emotional toll faced by intended parents navigating the labyrinth of parental rights. Throughout the proceedings, the applicants confronted scrutiny over whether they entered into the surrogacy arrangement with the initial intention of adopting G. This intention is paramount, as legal precedents indicate that an adoption order cannot be issued if the child was brought into the UK expressly for the purpose of adoption.

During the hearings, a significant aspect raised was the financial transactions involved in the surrogacy agreement, which included considerable payments to the surrogate for her services. The legality of these payments is critical, since certain sections of the Adoption and Children Act regulate financial matters related to adoption processes. The applicants maintained that these payments did not constitute acts of purchase or coercion for adoption but rather fees for the surrogacy arrangement, highlighting the importance of clearly distinguishing between surrogacy and adoption-related payments.

Despite the extensive arguments presented by both sides, Mr Justice MacDonald ultimately favoured granting the adoption order. He determined that it was in G's best interests, given the enduring emotional bond between G and his intended parents C and D, along with the stability an adoption order would afford in legal terms. This judgment accentuates that the welfare of the child remains the paramount consideration in such cases, even when procedural violations may have occurred along the parents' journey.

This case does not exist in isolation; it mirrors a broader trend where surrogacy laws worldwide are being scrutinised and examined in light of increasing cross-border surrogacy arrangements. The absence of a coherent legal framework governing these practices necessitates a reassessment from both legislative and judicial standpoints to forge best practices moving forward.

In sum, "C & Anor v E" provides a pivotal examination of the intersection between domestic adoption laws and international surrogacy agreements. It serves as a vital reference point for future cases, illustrating the critical need to safeguard children's welfare while addressing the legal complexities faced by families seeking to bond through non-traditional means. As the familial landscape evolves, it is anticipated that legal frameworks will adapt to respond more effectively to these emerging dynamics.