L (Section 83 ACA and Surrogacy), Re [2026] EWFC 181

[2026] EWFC 181Case No ZC25P01466
IN THE FAMILY COURT
Venue SITTING AT THE ROYAL COURTS OF JUSTICE, Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/03/2026
IN THE MATTER OF THE HUMAN FERTILISATION AND EMBRYOLOGY ACT
2008
Before
THE HONOURABLE MR JUSTICE CUSWORTH
Between
Re L (Section 83 ACA and Surrogacy)ApplicantRe L (Section 83 ACA and Surrogacy)
Professor George KC (instructed by Dawson Cornwell) for Applicants for The Respondents did not appear and were not representedHearing Hearing dates: 5 March 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 08/07/2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................This judgment was delivered in private [and a reporting restrictions order OR transparency order is in force]. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.

Cusworth J:

[1]This hearing concerns Lucia (not her real name), a girl born in May 2025. This is an application for a Parental Order pursuant to s 54 of the Human Fertilisation and Embryology Act 2008, made jointly by the applicants, who are a married couple. The matter was listed before me for directions or if appropriate, a final hearing. I read the statement of the applicants dated 11 February 2026, with its exhibits, the Parental order report dated 20 February 2026, and consent forms from the birth parents dated 23 February 2026. The application is unopposed, so must make clear that I have not heard any submissions as to why I should not make the order and declaration sought. However, as I will explain, I am satisfied that these orders are ones that it is entirely appropriate for me to make.[2]Lucia was born in Minnesota, USA, and under the law of that State the applicants are already Lucia’s legal parents. The birth parents have as explained given notarised consent to the making of the parental order, and it is unequivocally supported by the parental order reporter, Ms Callaghan of CAFCASS. Brief background[3]In summary, the applicants are a same-sex married couple. The first applicant (‘A’) was born in the UK. The second applicant (‘B’) was born in an EU state and moved to the UK in her late teens and was naturalised in 2018; she is a dual national of her birth country and the UK. The parties met in 2014 and married a few years later. After first unsuccessfully attempting IVF, they decided to embark on surrogacy which, because the eggs were in the USA, necessarily had to take place there. They used a well-known agency (based in California) to match with a surrogate, and instructed lawyers in Minnesota where the surrogate and her husband live.[4]The surrogate and her husband have three children of their own. She has also been a surrogate twice before for other families, prior to this pregnancy. They had independent legal advice and assistance throughout the process. The applicants met the respondents in December 2023 and entered into a surrogacy agreement with them in April 2024, which provided for permitted payments for expenses. The embryo was placed in September 2024, and Lucia was born just a few days early in May 2025.[5]Lucia’s birth was initially registered in the surrogate and her husband’s names. A remote hearing took place in Minnesota in June 2025, attended by all four adults, which established(i) B as Lucia’s biological parent, initially along with the husband, and then(ii) 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. This was an administrative process: although there was a court hearing, there were no other steps required, such as any investigation by a social worker, as would ordinarily have occurred in relation to a step-parent adoption order in that jurisdiction or indeed in this jurisdiction. The applicants thereafter returned to the UK with Lucia and have been living with her here since then. Adoption and Children Act 2002, s 83[6]The above process has produced a preliminary complication. The Minnesotan legal process has involved A becoming Lucia’s legal parent by means of what is, in effect, a step-parent adoption order, albeit that this happened administratively rather than as the result of the standard process for seeking such an order (e.g. 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). As they set out, their intention in doing so 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. The complication arises because of the apparent scope of s 83 of the Adoption and Children Act 2002, and its associated Regulations. That section reads, as relevant: Section 83 - Restriction on bringing children in (1) This section applies where a person who is habitually resident in the British Islands (the “British resident”) — (a) brings, or causes another to bring, a child who is habitually resident outside the British Islands into the United Kingdom for the purpose of adoption by the British resident, or (b) at any time brings, or causes another to bring, into the United Kingdom a child adopted by the British resident under an external adoption effected within the period of twelve months ending with that time. The references to adoption, or to a child adopted, by the British resident include a reference to adoption, or to a child adopted, by the British resident and another person. … (4) Regulations may require a person intending to bring, or to cause another to bring, a child into the United Kingdom in circumstances where this section applies — (a) to apply to an adoption agency (including a Scottish or Northern Irish adoption agency) in the prescribed manner for an assessment of his suitability to adopt the child, and (b) to give the agency any information it may require for the purpose of the assessment. (5) Regulations may require prescribed conditions to be met in respect of a child brought into the United Kingdom in circumstances where this section applies. … (7) If a person brings, or causes another to bring, a child into the United Kingdom at any time in circumstances where this section applies, he is guilty of an offence if — (a) he has not complied with any requirement imposed by virtue of subsection (4), or (b) any condition required to be met by virtue of subsection (5) is not met, before that time, or before any later time which may be prescribed. (8) A person guilty of an offence under this section is liable — (a) on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both, (b) on conviction on indictment, to imprisonment for a term not exceeding twelve months, or a fine, or both.[7]As Professor George KC, for the applicants, acknowledges, s 83 of the ACA is apparently engaged because A is habitually resident in the British Isles, and has brought a child into this country from abroad where that child was adopted in the foreign state within a period of 12 months prior to the child’s arrival in this country. It is accepted by the applicants that the requirements of the relevant Regulations have not been complied with, and I accept that here they could not have been complied with. Ostensibly, therefore, this section appears to suggest that a criminal offence has been committed.[8]However, I am reminded that MacDonald J in B v B and Ors (Section 83ACA 2002 and Step-Parent Adoption)[2026] EWHC 97 (Fam) dealt with a comparable situation, where the applicant was seeking a step-parent adoption order in the English court, having previously been granted a step-parent adoption order by the court of a Caribbean state. MacDonald J accepted in that case that the argument put forward on behalf of the child’s Guardian that s 83 was simply inapplicable to the facts of that case. There, the Department for Education had been invited to intervene; declining to do so, they had written to the court a letter, of which

the judge said at [47]:

‘In that letter, the DfE asserts that "It is a matter for the court as to whether section 83 applies on the facts of any given case, and/or whether section 83 has been complied with…".’
[9]Accepting that position, MacDonald J went on to find explicitly that s 83 did not apply to the facts of B v B. In considering s.83, he held from [54] that:
‘[54] Parliament's intention in creating and enacting s.83 of the 2002 Act was to address cases in which prospective adopters brought into the jurisdiction a child who was a stranger to them for the purposes of adoption, often having made payment to secure the child and without any or any adequate assessment of their ability to meet the needs of the child, after that child had been removed from his or her birth mother in circumstances that induced or pressured the mother to part with her child.In stark contrast to this situation, EB is a step-parent seeking an adoption order in respect of the child of his partner who he has been caring for since she was 7 years old, a situation that has been endorsed by an order arising out of a rigorous process of assessment and evaluation prior to judicial scrutiny of the merits of an adoption. Adopting a purposive interpretation of s.83, these are not circumstances that Parliament intended s.83(1)(b) to cover. [55] I am reinforced in that conclusion by the fact that the 2002 Act specifically provides for regulations to be made by the Secretary of State that disapply s.83 where the "British resident in question is a partner of a parent of the child", pursuant to s.86(1)(b), and "the prospective adopter is a partner of a parent of the child", pursuant to s.86(2)(b)… Parliament expressly recognised that, depending on the facts of the case, a step-parent adoption may fall outside the circumstances s.83 of the 2002 Act was intended to cover [56]My conclusion is further reinforced by the fact that it will be difficult, if not impossible, for a person in the position of EB to comply with certain of the regulations in the AFER 2005, which have been promulgated in the context of the requirements of s.83 of the 2002 Act.’
[10]Subsequently, at [58]-[59], he held that in addition to those factors, there would be close personal ties amounting to family life between the applicant and the child on facts such as those in B v B, and therefore that Article 8 would be engaged and thus require legislation to be read compatibly with it, in so far as possible. He concluded from [62]:
‘[62] Preventing a British resident step-parent from living in England and Wales with his adopted child, in respect of whom he has fulfilled the role of father for over a decade, for a period of 12 months following a lawful adoption in another jurisdiction, and exposing him to criminal sanction for doing so, is not a proportionate means of discouraging or preventing prospective adopters from bringing into the jurisdiction a child who is a stranger to them, having made payment to secure the child and without any or any adequate assessment of their ability to meet the needs of the child, following the child being removed from his or her birth mother in exploitative circumstances. [63] …I am satisfied that s.83 of the 2002 Act, and its associated provisions, should be interpreted in a manner that ensures that a person in the position of EB is not caught by those provisions. In my judgement, s.83 of the 2002 Act was not intended by Parliament to capture a case such as this. Namely, a British resident step-parent seeking a domestic adoption order in respect of the child of his partner, who he has been caring for as her de facto father for many years and who benefits from an adoption order in another jurisdiction arising out of a rigorous process of assessment and evaluation prior to judicial scrutiny of the merits of an adoption. This case falls into a wholly different category to the cases in the contemplation of Parliament when it enacted s.83 of the 2002 Act to address the issue of international adoptions involving the exchange of money and the concomitant exploitation of women in disadvantaged and vulnerable socio-economic circumstances abroad.’
[11]I acknowledge that the facts of this case are somewhat different from those in B v B, where the applicant had established a track record of care for the child for over a decade. However, I am satisfied that MacDonald J’s analysis applies with equal force to a case where, 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. Professor George submits that the policy aims of s 83, as set out, ‘to address the issue of international adoptions involving the exchange of money and the concomitant exploitation of women in disadvantaged and vulnerable socio-economic circumstances abroad’, are simply not applicable to this case. I agree with him. This is not by any means the same type of case as that discussed by Munby J in Re M (Adoption: International Adoption Trade)[2003] 1 FLR 1111.[12]Further, the Adoptions with a Foreign Element Regulations 2005 sets out in paragraph 4 that one of the ‘Conditions applicable in respect of a child brought into the United Kingdom’ is:
“(2) Prior to the child’s entry into the United Kingdom, the prospective adopter must— … (b) before visiting the child in the State of origin— (i) notify the adoption agency of the details of the child to be adopted; (ii) provide the adoption agency with any information and reports received from the relevant foreign authority; and (iii) discuss with the adoption agency the proposed adoption and information received from the relevant foreign authority; …”
In a surrogacy case, there is no adoption agency to notify; the applicants will never be seeking a UK adoption order, but the quite different legal order under s 54, HFEA 2008. (b) before visiting the child in the State of origin— (i) notify the adoption agency of the details of the child to be adopted; (ii) provide the adoption agency with any information and reports received from the relevant foreign authority; and (iii) discuss with the adoption agency the proposed adoption and information received from the relevant foreign authority; …”[13]If Minnesota had a different mechanism to recognise legal parentage in a situation such as this, s 83 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. It would seem both sensible and desirable to enable applicants to take the step of extinguishing birth parents’ legal parental status in their home state before departure for the UK as intended with their child. It is not in any child’s interest for their prospective parents to have to wait for a full year after the making of the necessary order before they can effect a return to this country, unless they wish to risk the possibility of criminal sanctions on their return. I am consequently persuaded that it is wholly appropriate to make the declaration sought by Professor George, that s 83 does not apply to the facts of this case. Parental order requirements[14]I can shortly conclude that the evidence establishes that the requirements of s 54 of the HFEA 2008 are plainly met in this case. Ms Callaghan of CAFCASS has provided her analysis of them in her report, and I agree with her conclusions. Both applicants are over 18. They married in 2020. The medical evidence shows that the embryo was created by artificial insemination using B’s egg and donor sperm in January 2023 before being transferred to the surrogate in September 2024. There are notarised consents from the birth parents indicating their unequivocal consent to the making of this order, and they have indicated that they do not seek to attend this hearing. The expenses paid in this case are, as Ms Callaghan says in her report, ‘in line with the payments made to experienced surrogates in the United States’. The application was issued within 6 months of Lucia’s birth, by an application dated 31 July 2025. The child is living with both applicants at their home in London; A is a British national who is undoubtedly domiciled in this country; B has lived here since 2003 and taken British nationality, I accept likely acquiring a domicile of choice.[15]Turning to the welfare checklist from s 1 of the Adoption and Children Act 2002, and considering as I must Lucia’s welfare throughout her life, I have no trouble in finding that all of the considerations point toward the making of the order sought. I have considered and accept in full Ms Callaghan’s welfare analysis, and I can wholeheartedly endorse her 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.[16]That is my judgment.