“Put bluntly, anyone seeking to achieve the introduction of a child into their family by following in the footsteps of these applicants should think again.”
So forewarned Sir Andrew McFarlane, President of the Family Division, in Re Z (Unlawful Foreign Surrogacy: Adoption) [2025] EWHC 339 (Fam). Two cases illustrate the stark importance of taking specialist legal advice prior to embarking on surrogacy arrangements.
Re Z [2025] EWHC 339 (Fam) concerned an unusual surrogacy arrangement commissioned by a same-sex couple in their 60s. While it was understood that the surrogacy activities would be carried out at a clinic in the Republic of Cyprus, it later transpired that the clinic’s activities were in the Turkish Republic of Northern Cyprus – where surrogacy was illegal and placement of children with same-sex couples prohibited.
A hefty sum of £120,000 was reportedly paid by the applicants for the creation of two children from the gametes of two individuals selected by the applicants to reproduce their own racial characteristics. The resultant embryos, which were implanted in and carried by two different surrogate mothers of Ukrainian nationality, were welcomed into the world on the same day, not coincidentally but purportedly at the direction of the clinic. The two applicants travelled to Northern Cyprus to welcome their new family.
The birth of the two children heralded not only joy for the applicants, but inadvertently opened up an international legal quandary by the children’s lack of status from any country with which they might be thought to have links. This resulted in a long delay of four years for the family’s much wished for return to their home in the United Kingdom. The children were born (and continued to be at the time of the application) de facto stateless having not been afforded Northern Cypriot citizenship despite their birth in Northern Cyprus, being unable to avail themselves of Ukrainian nationality despite being born to Ukrainian nationals, and with neither child being genetically related to either of the two British applicants that might have otherwise resulted in a route to recognition of their status in the United Kingdom. It appears that the surrogacy clinic then suggested the applicants “go along” with a falsehood proposed by the clinic, that one of the elderly applicants was in fact the natural mother of the children.
The applicants correctly refused to engage in such falsification but as a result were unable to obtain documentation evidencing the surrogacy arrangement that might have assisted their return to the UK. The applicants fought a long battle to bring their children to the UK, with refusals made both by the First Tier and Upper Tribunal prior to permission for the children to enter and stay eventually granted on the basis of Article 8 of the European Convention of Human Rights.
It is now well known that the legal parentage of children born by conventional surrogacy arrangements are regularised by applications for parental orders, with reference to the legal framework under s.54 of the Human Fertilisation and Embryology Act 2008.
Sir Andrew MacFarlane identified that an application for a parental order was in the first place not available in this case to the applicants given the requirement for the gametes of the applicant (or at least one of the two applicants) to be used in the embryos’ creation. It is worth noting that the learned judge additionally made critical comments that the sum paid constituted a “very significant amount of money” which in reality reflected a commercial rate rather than reimbursement of bona fide expenses by the surrogate. (NB: It is not explicitly concluded that the cost would have fallen foul of the bona fide requirement but the strong concern is raised.)
The court did ultimately permit the applicants their happy ending in giving legal effect to the lived reality of the children who, as confirmed by local authority assessment, were “embedded in every way, socially, emotionally, psychologically with their two parental figures and no doubt the wider family and wider community within which they now lived”.
However, the court’s comments reflect a high degree of concern for both the applicants and surrogates being exploited for commercial gain by the operators of the unlawful arrangement. The judge noted inter alia:- “The account of the circumstances surrounding the birth of these two children strongly suggests that all four women at the centre of the arrangements were being exploited for commercial gain by those running this unlawful operation…”
These concerns are shared by His Majesty’s Government, who have indicated inter alia that the Home Office may consider, if on notice of similar cases:-
- oppose applications on related immigration grounds before the First-tier Tribunal or the Administrative Court and seek findings in respect of the commercial surrogacy arrangement and/or exploitation; and
- oppose the seeking of an adoption order on the basis of public policy grounds (given its significant concerns that the court in the present case was placed in an impossible position where the only realistic option was for an adoption order to be made).
It is clear that a cautionary message is made to those who find themselves tempted to engage in irregular surrogacy arrangements to build a family, particularly those arrangements which give rise to concerns about exploitation via commercialised “commissioning” of children which is unlawful in the UK.
The bottom line is that it should never be assumed as a matter of fact that just any surrogacy arrangement will result in the court’s granting of a parental order (or indeed an adoption order).
It is a stark reminder that the court does not “rubber stamp” applications and has discretion to deny effect to unlawful operations or those engaging commercial exploitation.
Rayden Solicitors are legal specialists in international surrogacy and are able to advise at any stage of the international surrogacy process, and in particular advising as to the legal process to obtain legal parentage in the UK. If you would like some surrogacy advice please do not hesitate to contact us.
