A cautionary tale for intended parents embarking on a surrogacy arrangement

An application for a parental order was made by A and B, a same-sex couple living in England, in relation to their one-year-old daughter, Z. A originated from Country C and B from Country D. 

They met and started living together in 2017, forming a civil partnership in 2018. Wanting to start their own family, they looked into entering a surrogacy arrangement with a foreign surrogate. 

In 2020, A and B entered a contract with SurrogateBaby Agency (the agency). Many red flags should have given A and B pause for thought. Although informed that the agency was based in Country Y, all procedures would take place in Cyprus – this was not, however, detailed in the contract, and A and B knew that same-sex surrogacy arrangements were not permitted in Country Y. 

The agency advised that A should be listed in the contract as a single man rather than in a same-sex couple to avoid issues. A and B admitted they did not have much legal knowledge but entered the contract anyway. 

It was agreed that A and B would pay €64,000 in agency fees, including the surrogate’s expenses; the agreement allowed for unlimited embryo transfer attempts. Z was conceived using a donor egg and A’s sperm. 

The gamete collection and embryo- forming was undertaken in Northern Cyprus. A and B were introduced to the surrogate, X, by the agency in May 2022. X is from Country Y (which prohibits same-sex couples entering surrogacy arrangements), where she returned for the duration of her pregnancy, after undergoing the embryo transfer in Northern Cyprus.

 A and B stated they had always understood the birth would take place in Northern Cyprus. However, in October 2022, the agency informed them that due to the ongoing war (the judgment does not make clear which war), X could not give birth in Country Y. 

The options were Cyprus or Country W for an additional €14,000. Although same-sex surrogacy arrangements are not permitted in Country W, A and B elected this country, as they were told it would permit the birth if A attended alone as a single father and it could assist with an application for a Country C (A’s home country) passport for the child. 

Following her birth in Country W, Z was placed into A’s care. A and X registered the child’s birth, noting them both as the legal parents in Country W. B joined later. X did not find out that A and B were a couple until a week after Z’s birth. 

In May 2023, A travelled with Z to Country C (as X agreed to a Power of Attorney providing A with full rights) and brought Z to the UK in August 2023 after securing a visa for her. Z now has settled status in the UK. A and B paid the agency a total of €71,500 – €7,500 more than initially agreed. The C51 application for a parental order was issued in November 2023. A final hearing took place on 8 October 2024, with judgment handed down on 24 October 2024. 

Legal framework 

For a parental order to be made in the UK, which would extinguish X’s legal relationship with Z and make only A and B the legal parents, the eligibility criteria under s54 of the Human Fertilisation and Embryology Act 2008 must be met, as well as Z’s welfare needs in accordance with s1 Adoption and Children Act 2002. 

Judgment 

Most of the eligibility criteria were clearly met, save for the following aspects which required scrutiny: 

• The application was not made within six months of Z’s birth – Theis J determined the delay was negligible and the reasons for it were acceptable, namely: the application was submitted to the court in early September 2023 but not issued by the court for two months; A and B were focused on securing Z’s visa to travel to the UK; and it was in Z’s welfare interests that the application proceeded.
• Whether at the time the application was issued at least one of the applicants was domiciled in this jurisdiction – Theis J determined that A had acquired a domicile of choice in the UK as: he had established roots in the UK; he only chose to not obtain British citizenship as relinquishing his citizenship to Country C would make it difficult for him to travel there to see his family; and he had no other ties to Country C. Moreover, homosexuality is illegal in Country C, strengthening A and B’s argument that they had no plans to move there.
• Whether X has provided consent in accordance with s54 – the A101A consent form was signed and dated by X, but not notarised or translated. Similarly, the C52 acknowledgement form was not translated. Nevertheless, Theis J determined that consent was given freely, unconditionally and with full understanding as, notwithstanding that X only realised A and B were in a relationship after Z’s birth, she: continued to communicate with A and B; provided written consent; spoke with the Guardian on two occasions about the legal ramifications of providing consent; and continued to provide consent.
• Whether there are any payments other than for expenses reasonably incurred that the court needs to consider whether to authorise under s54(8) – although some payments to X and the agency were not expenses reasonably incurred, Theis J ultimately approved them – albeit stating “not without some hesitation, I accept the submission that the applicants acted in good faith”. 

Theis J carefully considered the various public policy arguments. Hedley J in Re L (a minor) [2010] EWHC 3146 (Fam) confirmed that a parental order should only be refused in the “clearest case of the abuse of public policy”. Theis J expressed disapproval of the applicants’ behaviour as despite knowing the risks of entering a surrogacy arrangement involving a country that prohibits same-sex surrogacy, they proceeded given their desire to start a family, and placed blame on the agency. She also found they had more access to legal advice than their statements claimed. Whilst the agency was also to be blamed, the applicants chose to enter the agreement despite uncertainty as to where Z would be born and their legal status to Z in that country. The applicants did, however, accept that what they did was wrong, and Theis J found that there was no exploitation of the surrogate. 

Z’s welfare concerns were of primary importance. A parental order reflects her lived reality, unlike a child arrangements order which would only provide A and B with parental responsibility and not legal parentage. A parental order was therefore made to secure lifelong security and stability for Z. 

Key takeaways for intended parents 

Ms O’Connell and Mr Powell outlined several key considerations for intended parents contemplating a surrogacy arrangement. Central to these concerns is understanding the legal framework in the country where the arrangement is to take place and where the child will be born. It is essential to establish whether surrogacy is permitted in that jurisdiction and whether the intended parents will be legally recognised as the child’s parents upon birth. 

If recognition is not automatic, it is crucial to identify what steps must be taken and whether these must occur before or after the birth. Equally important is understanding the surrogate’s legal status regarding the child at birth, as well as any legal rights that may extend to her spouse if she is married. 

The role of any agency involved in the arrangement should also be considered. Agencies often play a pivotal role in matching surrogates with intended parents and may facilitate agreements and communication. Relatedly, the preparation and support provided to the surrogate warrant careful examination. 

For instance, has she received sufficient information about the arrangement? If she does not speak or read English, measures must be in place to ensure she fully understands any agreements. Furthermore, intended parents should determine whether they will have an opportunity to meet or communicate with the surrogate before committing to the arrangement. 

The timing of the agreement between the surrogate and the intended parents is another critical factor. Whether the agreement is formalised before or after the embryo transfer can have legal and practical implications. Similarly, arrangements for ongoing communication between the surrogate and intended parents during the pregnancy and after the birth should be clarified. Will this contact occur directly or through an agency, and what level of interaction is appropriate? 

Jurisdictional issues are also significant. Intended parents must know where the embryo transfer will take place, where the surrogate will reside during the pregnancy, and whether the jurisdiction of the child’s birth could change. 

The child’s nationality at birth is another key consideration, particularly when navigating the process of bringing the child to the UK. Parents must identify the steps required to secure travel documentation, estimate the time this process will take, and consider whether separate immigration advice is necessary to ensure the child’s safe travel and legal status in the UK. 

Finally, maintaining a detailed chronological record of all events and relevant documents is vital. Not only is this essential for any future parental order application, but it also ensures that key information about the child’s background and identity is preserved. By addressing these considerations systematically, intended parents can navigate the complex landscape of surrogacy with greater confidence and clarity. Theis J also expressed the importance of obtaining legal advice before entering a surrogacy arrangement saying this “cannot be emphasised strongly enough.”

While a parental order was (luckily) made in this case, intended parents should be warned that taking such risks may not result in a parental order being made which would have serious consequences for the child. 

Key takeaways for practitioners 

If practitioners are fortunate to see intended parents at the outset of their proposed international surrogacy journey, legal advice will benefit all parties. While Theis J has given her warning, this practitioner has no doubt that intended parents will continue to embark on surrogacy arrangements without taking such early advice, resulting in complex applications to court to fix any issues.