Using (and refusing) adoption orders following surrogacy

The most common way to establish legal parenthood following a surrogacy arrangement is by way of a parental order under section 54 of the Human Fertilisation and Embryology Act 2008. However, it is also possible to establish legal parenthood through an adoption order. The practical effect of the two orders is the same but there are conceptual differences, and the approach of the court to the use of adoption orders following surrogacy has been conflicting. This paper interrogates the differences between parental orders and adoption orders, reflecting on how the courts have used – or refused – adoption orders to recognise intended parents as the surrogate-born child’s legal parents, with a particular focus on recent case law. Finding that the use of adoption orders following surrogacy is inconsistent, the paper examines whether the Law Commissions’ recommendations for reform to the law on surrogacy would negate the need for intended parents to rely on adoption orders. Ultimately, intended parents may continue to need to secure their legal relationship with the child through adoption orders. As such, it is imperative that adoption ceases to be framed as an alternative, or even inappropriate, method of recognition by the courts.