Re Zs – A cautionary tale of two surrogacy cases – Part 2

In this blog I am exploring the steps that can mitigate the risk of falling into difficulty when involved in irregular surrogacy arrangements.  This is a follow up article to my recently published blog which explored Re Z (Unlawful Foreign Surrogacy: Adoption) [2025] EWHC 339 (Fam) and the warnings of the court to those who may find themselves involved in such surrogacy arrangements.

So what concrete steps can be taken to ensure that one embarks on an international surrogacy arrangement that works with relevant international frameworks and prioritises the welfare of an intended child to be born via surrogacy?

Theis J put it clearly in Re Z (Foreign Surrogacy) [2024] EWFC:- “The message needs to go out loud and clear that when intended parents embark on these surrogacy arrangements they need to ensure there is clarity about what is proposed, that the written agreement clearly provides for the essential arrangements and the relevant legal framework is understood at each stage…”

Similarly to Re Z [2025] EWHC 339 (Fam), that case likewise resulted in slight complication when two same-sex applicants of different nationalities had commissioned a surrogacy arrangement via an agency in Cyprus – albeit the child was born in a third country in which surrogacy arrangements involving same-sex relationships were not permitted by law.

Theis J set out non-exhaustive guidance at paragraph 4 of “key issues” that any person who is thinking of pursuing a surrogacy arrangement – particularly one taking place in a different jurisdiction – should consider before proceeding:-

1. What is the relevant legal framework in the country where the surrogacy arrangement is due to take place and where the child is to be born? Put simply, is such an arrangement permitted in that country?
2. When the child is born, will the intended parents be recognised as parents in that country, if so how? By operation of law, or are the intended parents required to take some positive step and, if so, what steps need to be taken and when (pre- or post-birth)?
3. What is the surrogate’s legal status regarding the child at birth?
4. If the surrogate is married at the time of the embryo transfer and/or the child’s birth, what is the surrogate spouse’s legal status regarding the child at birth?
5. If an agency is involved, what role do they play in matching the surrogate with the intended parents?
6. What information, preparation or support has the surrogate had about any proposed surrogacy arrangement?
7. Does the surrogate speak and/or read English? If not, what arrangements are in place to enable her to understand any agreement signed?
8. Will the intended parents and the surrogate meet and/or have contact before deciding whether to proceed with a surrogacy arrangement?
9. When will the agreement between the intended parents and surrogate be made, before or after the embryo transfer, and what are the reasons for it being at that time?
10. What arrangements are proposed for contact between the intended parents and the surrogate during the pregnancy and/or after the birth? For example, is it only via the agency or can there be direct contact between the intended parents and the surrogate?
11. Which jurisdiction will the embryo transfer take place and which jurisdiction will the surrogate live in during any pregnancy?
12. Can the jurisdiction where the child is to be born be changed at an stage, and if so, by whom and in what circumstances?
13. What nationality will the child have at birth?
14. Following the birth of the child, what steps need to be taken for the child to travel to the United Kingdom, what steps need to be taken to secure any necessary travel documentation for the child and how long does that take?
15. Will the intended parents need to take any separate immigration advice to secure the child’s travel to the United Kingdom and what is the child’s status once the child has arrived in this jurisdiction?
16. Finally, keeping a clear and chronological account of events and relevant documents is not only important for the purposes of a parental order application but also, importantly, retains key information regarding the child’s background and identity.

It should be noted that the court in Re Z [2025] EWHC 339 (Fam) further endorsed two elements raised by the government:-

1. The parties should consider early and meaningful engagement with the Home Office, Department of Education and/or the Department for Health and Social Care, especially where there are, or there are intimated proceedings in some court or tribunal; and
2. In particular, if proceedings are issued in the Family Court, early consideration should be given to the addition of either or all of the Home Office, Department of Education and/or the Department for Health and Social Care as a party.

Having a fully informed view as to the legal frameworks in which proposed international surrogacy arrangements may be engaged in is crucial, to ensure appropriate specialist advice in each jurisdiction is taken to avoid or pre-empt unanticipated issues which might arise. These issues but go beyond not only granting of a parental order sought, but also the logistical conundrums of legally facilitating the travel of the child to the UK prior to parental orders being granted.

The two cases in Re Z provide much-needed guidance at an exciting time where the law of parental orders is being clarified by the court to give effect to modern families, while keeping at the centre of its concerns the wellbeing of the children and individuals involved.

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. Please do not hesitate to contact us if you would like to discuss your options relating to surrogacy.