In law, adopted children are regarded as having been born to their adoptive parents. The Family Division of the High Court recently considered whether that fact precluded a parental order being granted under the Human Fertilisation and Embryology Act 2008 (HFEA) in respect of a child born via surrogacy.

A couple who lived in the USA had entered into a surrogacy arrangement with another woman. An adoption order naming the couple as the child's parents had been made by a US court and was automatically recognised under UK law. However, the couple were advised that, due to an issue regarding a family trust set up before UK adoption laws were reformed in 1976, they needed to apply for a parental order in respect of the child.

Under Section 54(1) of the HFEA, one of the criteria for granting a parental order is that 'the child has been carried by a woman who is not one of the applicants'. However, Section 67(1) of the Adoption and Children Act 2002 (ACA) states that an adopted person is to be treated in law as if they had been born to the adopters. The question for the Court to decide was whether the wording of Section 67(1) prevented it from recognising the child as having been born to the surrogate mother.

Citing previous case law on the subject, the Court drew a distinction between a child's legal status and the facts surrounding their birth and parentage. It noted that, according to the Explanatory Notes to the ACA, the provisions in Section 67 are 'intended only to clarify how an adopted child should be treated in law', and 'do not touch on the biological or emotional ties of an adopted child'. Section 54(1) of the HFEA, on the other hand, focused on a 'precise factual context'. As a matter of fact, the child had been carried by the surrogate mother, who was not one of the applicants, and Section 67(1) of the ACA did not preclude the Court from recognising that fact. The parental order was granted.