A single father has adopted his biological child born to his mother in a surrogacy arrangement using donor eggs.
The High Court ruled that the man - who is also considered in law as the child's brother - was able to adopt the child, now 7 months old. Mrs Justice Theis said a 'critical feature' of the case was the 'obviously close relationships within this family' and held that it was in the child's long-term welfare for an order to be made.
'The strength of these familial relationships, and the consequent support they provide now and in the future, will ensure [the child's] lifelong welfare needs are met,' she said.
The man's mother offered to step in as a surrogate after another female relative dropped out for medical reasons. She was implanted with an embryo created with a donor egg by IVF and successfully carried the fetus to term. The treatment was performed at a fertility clinic licensed by the Human Fertilisation and Embryology Authority and all parties, who have not been named, received counselling.
The mother and her husband, who had consented to the arrangement, were both included as the child's parents on the birth certificate. However, the biological father was unable to apply for a parental order - often required to become a legal parent following surrogacy - which is only available to married couples, civil partners or to two persons living in an 'enduring family relationship'. A single person caring for a surrogate-born child is able to apply for an adoption order, however.
Mrs Justice Theis said although the case was 'highly unusual', it was entirely lawful. 'The arrangement the parties entered into is not one, as far as I am aware, that either this court or the clinic have previously encountered,' she said.
In fact, the unusual circumstances of this case meant the family avoided potentially infringing adoption laws. If the biological father wasn't also considered in law as the child's brother, then the mother and her husband could have been acting unlawful by placing the child for adoption.
'What this case highlights, is that but for the close familial relationship between [the mother] and [her husband], their actions would have breached these important statutory provisions and potentially left them liable to a criminal prosecution,' Justice Theis said.
She added that single people considering surrogacy should seek legal advice on adoption. 'The process under which they can achieve this is a legal minefield, they need to ensure that all the appropriate steps are undertaken to secure lifelong legal security regarding their status with the child.'
Some commentators have expressed unease with the case. Robert Flello, Labour MP for Stoke-on-Trent South, told the Daily Mail, 'This case throws up many concerns and worries. My greatest concern in all of this is the potential emotional damage to the child in years to come, as he tries to work out family relationships that most of us can take for granted.'