Russell-Cooke secures the first parental order establishing legal parenthood of an adult child, born through surrogacy

Russell-Cooke recently represented the claimants in X v Z (Parental Order Adult) [2022] EWFC 26 in a landmark surrogacy case.

The children law team, led by associate Jade Quirke and partner Samantha Little recently secured the first parental order establishing legal parenthood of an adult child born through a surrogacy arrangement.  

The team represented Mr and Mrs X, a British couple who underwent surrogacy in California during the 1990s. At the time, the UK’s legal framework for surrogacy was still uncertain, and they knew Californian surrogacy laws would recognise them as their child’s legal parents immediately from birth.  

Mr and Mrs X were matched with their US surrogate, Mrs Z, and following successful fertility treatment at a clinic in California, Mrs Z fell pregnant with an embryo created with gametes from Mr and Mrs X. The child, Y, was born in California in 1998 and in accordance with a Californian court order, Mr and Mrs X were listed on Y’s US birth certificate as the legal parents. Shortly after, the family returned home to the UK and have remained in close contact with Mrs Z and her family ever since.

In 2021, the parties discovered that Mr and Mrs X were not treated as Y’s legal parents in the UK jurisdiction. Mr and Mrs X were informed that their Californian court order and Y’s birth certificate were not recognised under UK law and instead, Mr and Mrs Z were Y’s legal parents in this jurisdiction.

In order to resolve this, Mr and Mrs X applied to the family court for a parental order, despite the fact that Y was an adult, and they were outside of the usual six-month window to make the court application following Y’s birth.

Mrs Justice Theis made a parental order in favour of Mr and Mrs X, placing a great deal of weight on arguments surrounding Y’s own identity and the importance of the parental order to reflect this.

Mrs X, mother of Y, commented:

“We are delighted by the judgment given by Mrs Justice Theis, and we hope it will help and encourage other families in a similar position to us to resolve their legal status following historic surrogacy arrangements. It is important that these families take advice from specialist surrogacy lawyers, like Jade, who are there to help and guide them.”

Jade Quirke commented: 

“This ruling is an important victory for parents of children born through surrogacy, especially in cases that have taken place overseas historically and where legal parenthood has not been resolved here in the UK.

“The hope is that this ruling will raise greater awareness of the importance of resolving legal parenthood following historic surrogacy and give confidence and encouragement to others who are in a similar position to Mr and Mrs X, to urgently consider their legal position to ensure that their family unit is legally secure."

Jade is an associate in our children and education team, and has expertise in fertility law.

She advises clients on a broad range of domestic and international children law issues including child arrangements, known donor/co-parenting, legal parenthood and relocation disputes. She is particularly experienced in advising non-traditional and LGBTQ+ families and often appears before the High Court in complex cases.

Samantha is a partner in our children and education team, and has over two decades' worth experience in fertility and children's' law. 

Samantha advises parents about family creation, surrogacy and parental orders and has been involved in a number of cases where errors in the actions of fertility clinics have led to difficulties with legal parentage, resulting in court applications for declarations of parentage.