Forty years on, surrogacy law is still playing catch-up

It is 40 years this year since the Surrogacy Arrangements Act 1985 came into force, as an urgent reaction to the Baby Cotton case, in which Kim Cotton undertook the first known surrogacy arrangement in the UK. The case sparked huge controversy and a hurried move to ban commercial surrogacy within the UK, after Kim acted as a paid surrogate for an American couple.

In the four decades since, whilst commercial surrogacy remains strictly prohibited in the UK, it has become increasingly common for British Intended Parents to undertake such arrangements elsewhere, and for the High Court to sanction those arrangements upon their return. Yet it is widely acknowledged that since the 1985 Act, itself a rushed piece of legislation, the law has failed to keep up with social, scientific and medical advances. Updates have been piecemeal and lacking in the ‘ground-up’ approach that is needed to bring about a law that reflects surrogacy in today’s society and what medical technology can do. The wildly divergent approach to surrogacy around the world adds further complications, particularly in a time of such extensive freedom of movement.

Subsequently, courts are routinely faced with situations that were not comprehended when the existing statutory provisions were drafted, and are forced to undertake legal gymnastics to find a way to fit modern family building into outdated provisions, often on a reactive basis.

Quite aside from the challenges posed by outdated legislation, those involved in international surrogacy, whether as Intended Parents or lawyers, are required to navigate conflicting laws and approaches, and the constant battle to ensure surrogacy is undertaken in a careful and ethical manner, often in places where there is no comprehensive regulation or legal framework.

The result is a line of recent cases that call into question at what point there will be the first refusal to grant a Parental Order on public policy grounds, and which acts as a reminder these arrangements can be complex and proper preparation is crucial.

Key Milestones
After the restrictive approach taken in the ’85 Act, the framework for Parental Orders came under the Human Fertilisation and Embryology Act 1990, updated by the 2008 Act. The latter remains the current statutory framework for the granting of Parental Orders. 

Neither was particularly progressive, particularly as against societal and medical advances and increased international movement. It was not until the 2008 Act that unmarried or same-sex couples could obtain Parental Orders, and not until 2019 that a single person could, and only then, following the Declaration of Incompatibility in Re Z (A Child) (No 2) [2016] EWHC 1191 (Fam).

It was not until 2008, in the case of Re X and Y [2008] EWHC 3030 (Fam), that a Parental Order was granted following an international commercial surrogacy arrangement (the case involved twins born in Ukraine). Ministry of Justice and CAFCASS statistics suggest that in 2008 there were 67 applications for Parental Orders, of which 1 related to an international arrangement. Fast-forward to 2018, and the number of applications had risen to 280, with more than a third arising from international arrangements. CAFCASS data now puts international arrangements at 53% of all Parental Order applications since 2014, with the number of applications rising each year.

The 2020 Supreme Court decision of Whittington Hospital NHS Trust v XX further cemented the acceptance and recognition of international surrogacy, with the granting of personal injury damages to expressly cover a commercial international surrogacy arrangement.

Over the years, the international landscape has changed. Favoured destinations like India and Thailand shut their borders to international surrogacy, and the invasion of Ukraine saw the third most popular destination effectively closed. In their place, new destinations like Cyprus, Mexico, and Colombia have emerged, but without established frameworks. There have also been several cases involving African states, which have given rise to concerns over the authenticity of documentation and the scope for exploitation and trafficking.

In short, international surrogacy continues to grow, but so too do the challenges it can bring.

Key cases
The last 2 years have been particularly active for significant decisions involving international surrogacy. All constitute informative and important reading, but several stand out as particularly illuminating:

Re A and B v X and Z (Foreign Surrogacy) [2024] EWHC 304 (Fam)
The applicants were same-sex civil partners. They engaged an agency in Cyprus, but paperwork linked the agency to another country, where same-sex arrangements were illegal. They were advised to (and did) complete the paperwork as a single applicant to conceal that they were a same-sex couple. There was debate as to whether the surrogate, who was also from a country where same-sex surrogacy was illegal, had been aware she was acting for the couple rather than a single parent. Concern was expressed about the behaviour of all involved. The Court issued a 16-point list of factors that must be considered ahead of any international surrogacy arrangement.

Re H (Surrogacy: Step-parent adoption) [2023] EWFC 214
The applicants were a same-sex couple who undertook a surrogacy arrangement in Argentina. They applied for step-parent adoption rather than a Parental Order, despite the fact they would have qualified for a Parental Order. The reason was to allow recognition of the legal relationship in Italy, where one of the fathers was from, which would not have been possible through a Parental Order, due to Italy’s prohibitive approach to surrogacy. It was acknowledged to be unusual to use adoption in a surrogacy case, but it was accepted to work better for the needs of this specific family and was granted accordingly.

Re X v W and Z, by his Children’s Guardian [2025] EWFC 25
A single father engaged an agency in Cyprus, which was registered in Israel. A surrogate was sourced from Kyrgyzstan and travelled to Cyprus for treatment. The birth was scheduled to take place in the Czech Republic but was changed on short notice to Moldova as a fait accompli. There was an understanding surrogacy was illegal in Moldova and potentially in Kyrgyzstan, especially for a single male. A Parental Order was granted despite the concerns over illegality. Concern was expressed about the conduct of the agency and the extent to which the Father had been naïve.

H (Anonymous Surrogacy), Re [2025] EWHC 220
“A” was born in Nigeria pursuant to a surrogacy arrangement there. The identity of the surrogate remained unknown to the Intended Parents throughout the process, with both her face and name concealed in all interactions. The case was heard by the President, during which the Intended Parents explained their preference for an anonymous arrangement. The President expressed concern about the anonymous arrangement and noted the need for extra caution around Nigerian arrangements arising from the Special Restrictions order regarding adoptions and the reasons for it.

K v Z [2025] EWHC 927
A couple in their early 70s sought a Parental Order after undertaking surrogacy in America. The Parental Order was granted, but the court expressed concern as to the welfare implications of having a child so late in life. The judgment added more factors to the checklist set out in Re A and B.

Re Z (Unlawful Foreign Surrogacy: Adoption) [2025] EWHC 339
A same-sex couple (one almost 70, one over 70) undertook a parallel surrogacy to create 2 children born on the same day. Neither was biologically related to the children, and as such, not entitled to a Parental Order. The arrangement took place in Cyprus, with a surrogate from Ukraine. The arrangement was illegal locally, and due to the legal complications in respect of parenthood arising from the multi-jurisdictional arrangement, the children were stateless, and no one had parental responsibility. The children were stranded in Cyprus for 4 years before permission could be obtained to bring them into the UK. The adoption order was granted, but the President made clear there were serious concerns about what had taken place, and it should not be taken as precedent that such orders would be made in future. The judgment added further factors to the Re A and B checklist.

There are some core issues that run through these cases, of which advisors will need to be aware:

The need for advice and preparation
The potential complexities that arise in international arrangements are nothing new; FCO guidance was issued as far back as 2013, which highlighted key points to consider, but it is remarkable how many people still do not obtain advice prior to embarking on an arrangement. Many of the judgments above stress the importance of proper advice being obtained before the arrangement is entered into.

In Re A and B Mrs Justice Theis described the failure to prepare as “extremely naïve” and considered the “lack of due diligence” was an “abdication of the most basic responsibility,” before stating “such behaviour is to be deprecated.” The 16-point checklist contained in the judgment marks essential reading for advisors and for potential Intended Parents. In Re X her Ladyship characterised the lack of advice as “reckless disregard of...the implications.” The strength of language used, as well as by the President in Re Z, suggests there is a limit to the extent to which the courts will forgive and indulge Intended Parents who end up in complicated situations as a result of willful blindness or naivety. Clients will now need to understand that ignorance will not necessarily be a defence, and as the President made clear in Re Z, the fact orders were made should not be taken as an indication that will happen in future, but rather the case should “offer some advice for those who may in future unwisely seek to follow the path taken in this case.”

Multi-jurisdictional arrangements
Several of the cases above involved an agency or clinic based in one state, with links to a second, a surrogate from a third state, and Intended Parents from fourth and/or fifth states, with birth in yet a further jurisdiction. In both cases this only added to the uncertainty as regards legal status for both parenthood and immigration. These cases also give rise to concern for the welfare of surrogates who are recruited from unrelated jurisdictions and often made to remain away from home for the duration of the arrangement. What was permissible in one of the countries was not in another, and in some cases a level of deception was required. In the case of Re X, the change to the place of birth also caused complications for visa requirements, meaning the father and child only left Moldova with ‘days to spare,’ and in Re Z the children were stateless and without legal parents or holders of responsibility, and the family was unable to return home to the UK and live together for four years, despite having been told to expect a ‘quick’ process and return.

Would-be Intended Parents need to be alert to the growing trend for multi-jurisdictional arrangements and the added complications they can cause. They will be well advised to scrutinise their agency to minimise the chances of later surprises. Advance immigration advice is also essential. Intended Parents cannot simply rely on anything the agency proposes as suitable or sensible and must undertake due diligence.

Misleading Agency Practices
In Re A and B and Re X, there was concern about the conduct of the agency involved, which included (but was not limited to) switching the country of birth at the eleventh hour to countries where surrogacy was illegal, placing all involved at significant risk. In both cases, the Intended Parents were made to ‘masquerade’ as single in one case, and the surrogate’s partner in the other. In Re Z the mothers were told to pretend to be the birth mother (which they refused to do).

The cases have brought into sharp focus the question of whether the court can, and should, legitimise via a Parental Order an arrangement that is illegal elsewhere and/or has been undertaken using deception. In Re X, Theis J noted “what took place… causes the Court enormous concern.” And in Re Z the President expressed the view the surrogates and Intended Parents had been “exploited by an unlawful operation.” The cases involve close scrutiny of the Intended Parents’ intentions and awareness. It is clear from the concern and criticism expressed by the court that neither ignorance nor ‘wilful blindness’ will be overlooked. Prospective Intended Parents will need to satisfy the court of the lengths they went to in order to satisfy themselves everything was legitimate and to question anything that looks ‘off.’ In Re X, the father had found the agency at an established fertility exhibition and assumed that equated to credibility. Intended Parents need to understand that even established agencies may need careful scrutiny, and the court will expect that to have been done.

Differing ethical boundaries
Re H, Re K v Z and Re Z in particular note the growing trend for people to be able to travel abroad to undertake treatment that cannot be done here under HFEA guidelines, such as treatment late in life and/or with completely anonymised surrogates. Such practices raise clear concerns for the wellbeing of those involved and especially for the children born as a result. It is now possible, medically, to achieve whatever the patient wants, but that increasingly leads to questions of whether it should be done and how that impacts on the resulting child’s long-term welfare. Prospective parents will need to understand that just because it is possible and/or permissible elsewhere does not mean it will be endorsed by the courts here, and the comments of Knowles J in K v Z and the President in Re Z again make for essential reading when providing advice to any Intended Parents looking to undertake arrangements outside of the accepted norm.

Conclusion
The challenges posed by some of the newest destinations, particularly Cyprus, seem unlikely to abate any time soon. For now, advisors and Intended Parents must not underestimate the importance of vigilance, transparency, and preparation, nor the risk that the point will be reached where the court refuses to endorse an arrangement that has failed to adequately cover those requirements.