Spotlight on surrogacy: developments on the international stage

Insight

29.05.2025

The demand for surrogates greatly outweighs supply in England and Wales. Often, intended parents look to enter surrogacy arrangements abroad instead. Yet having a child via a surrogacy arrangement, whether domestically or abroad, does not automatically confer legal parentage in England and Wales. Intended parents must obtain a parental order. As two recent cases involving international surrogacy arrangements have shown, this is no simple box-ticking exercise.

Same sex couples and foreign surrogacy arrangements

Where intended parents living in England and Wales wish to undertake surrogacy in another jurisdiction, they need to grapple not only with domestic law, but also the law of the jurisdiction in which the surrogacy takes place. This is a factor that is all too often a secondary consideration.

The recent case of Z (Foreign Surrogacy) [2024] EWFC 304 serves as a warning to intended parents to ensure they have a full understanding of the legal framework of the country in which the child is born and the steps they need to take in that jurisdiction to secure their legal relationship with the child as their parents.

The case involved a same-sex couple in England and Wales who entered into a surrogacy arrangement involving a clinic based in Cyprus. The surrogate was living in another country, known only as “Country Y” in the proceedings, and due to an ongoing war in “Country Y”, gave birth to the child in another country, “Country W”. “Country W” is a jurisdiction where surrogacy arrangements involving same-sex relationships are not permitted.

After the child’s birth, the intended parents applied to the court for a parental order under section 54 Human Fertilisation and Embryology Act 2008 (HFEA 2008) to be recognised as the child’s legal parents. The judge hearing the application, Theis J, granted a parental order on the basis of the child’s welfare, but warned:

“On the basis of the applicants' evidence there is real concern about the way the agency approached this arrangement, with the uncertainty as to where the child was going to be born in the context of the applicants' relationship and the legal framework in the jurisdictions concerned. On the face of the arrangements the applicants, the surrogate and the unborn child were exposed to some risk if the true nature of the relationship was discovered.

Not without some hesitation, I accept the submission that the applicants acted in good faith. Their acceptance that they were naïve is perhaps an understatement, it is more likely that they took risks to pursue their own wish to have a child rather than confront the harsh reality of what they were doing and the consequences of those actions if anything did not go according to their plan with the agency.”

Helpfully, Theis J gave guidance on the matters that intended parents should investigate before entering into a surrogacy agreement, particularly if another jurisdiction is involved, including:

Whether the proposed arrangement is permitted in that jurisdiction (particularly relevant for same sex couples as the case above highlights).
Whether they will be recognised as parents following the birth, and if so, by operation of law or whether they need to take some positive steps and, if so, what steps and when.
The surrogate's legal status regarding the child at birth.
If the surrogate is married at the time of the embryo transfer or the birth, what their spouse's legal status is regarding the child.
If an agency is involved, its role in matching the surrogate with them.
If the surrogate does not speak or read English, the arrangements to enable her to understand any agreement signed.
Whether the surrogacy agreement will be made before or after the embryo transfer and the reasons for that.
The arrangements for contact between the intended parents and the surrogate during the pregnancy and after the birth, for example whether direct contact is permitted.
Where the embryo transfer will take place and which jurisdiction the surrogate will live in during any pregnancy.
Whether the jurisdiction where the child is to be born can be changed, and, if so, by whom and in what circumstances.
The child's nationality at birth and the arrangements for registering the birth.
The steps that must be taken for the child to travel to the UK, including necessary documentation, relevant time frames, whether immigration advice is required to secure the child's travel, and the child's status once in the UK.

As the case demonstrates, it is essential that intended parents understand the legal implications of entering into a surrogacy arrangement in another jurisdiction. The surrogacy process risks being fraught with challenge if intended parents enter into arrangements without a full understanding of both local law and the requirement to obtain a parental order in England and Wales.

Know your surrogate: the risks in remaining anonymous

In Re H (Anonymous Surrogacy) [2025] EWHC 220 (Fam), the President of the Family Division, MacFarlane P, warned intended parents against the risks of using a surrogate who wished to remain anonymous.

The case again involved a surrogacy arrangement abroad, this time in Nigeria. The intended parents, who were living in England, chose to use an anonymous surrogate in Nigeria and her identity remained unknown throughout the proceedings. The intended parents applied for a parental order under section 54 HFEA 2008 in respect of the child, who was then living with them in England. When deciding whether to grant a parental order, the court must be satisfied that the surrogate has agreed unconditionally to the making of the order (s.54(6), HFEA 2008).

Although the child was thriving in the intended parents’ care in England, the parental order reporter declined to recommend making a parental order twice in the proceedings as the documentation presented to the court failed to clearly show the surrogate’s consent to a parental order being made.

The President required the applicants to explain why they chose an anonymous surrogate, as well as their attempts to engage with the surrogate in Nigeria via the clinic to obtain her consent. A copy of the surrogacy agreement, which included the surrogate’s initials for her signature, was eventually presented to the court. In a letter to the President, the intended parents explained why they used an anonymous surrogate:

“We thought this will remove all the problems people face when they do surrogacy and the stigma that surround it. We want safety, protection, security, and peace of mind. We didn't want unnecessary involvement and attachment; we just want to sign the contract without owing anybody obligation. We understand someone to do this is really giving us something special we don't want to carry this for the rest of our lives identifying the person will make us think we owe them gratitude for the rest of our life.”

The parental order reporter balanced the clear welfare benefits to the child of the applicants being recognised as her legal parents against the lack of clarity in the documentation, and finally recommended the making of a parental order. However, she warned that not only does anonymity prevent the court from being able to be satisfied that the surrogate knows of the application and consents to it, but it also raises the level of suspicion around the arrangement.

In light of the parental order reporter changing her recommendation, and only after having received information and evidence from the intended parents over a series of hearings, the President finally decided to grant the parental order. He concluded that the prospects of tracing the surrogate (who was also the child’s genetic mother) and securing her engagement were so remote that the reality is that she “cannot be found” within the meaning of s.54(7), HFEA 2008. The application could therefore proceed without the need to obtain the surrogate’s agreement under s.54(6).

It is evident that the decision to opt for an anonymous surrogate caused the intended parents a great deal of difficulty. As the President made clear, intended parents who follow in their footsteps in the future would be well advised to avoid engaging with an anonymous surrogate.

What’s next for surrogacy?

Practitioners in England and Wales are keeping a close eye on the international stage. With many intended parents historically opting to undertake surrogacy arrangements in the US, President Trump’s declaration of his intention to limit birthright citizenship last month has caused some uncertainty. Now more than ever the political landscape is being kept under review.

On the domestic and international front, the law in this field is ever evolving. It goes without saying that intended parents need specialist legal advice and the earlier they do so, the better equipped they will be to deal with any potential difficulties in their surrogacy journey.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.