High Court grants parental order in anonymous surrogacy case

7 Feb 2025Court Report

The High Court has granted a parental order in a complex case involving an anonymous surrogate mother

Introduction

The High Court of Justice, Family Division, presided over by Sir Andrew McFarlane, has granted a parental order in a case involving an anonymous surrogate mother. The case, Re: H (Anonymous Surrogacy), centred on the application of Mr and Mrs H, who sought legal recognition as the parents of a baby girl, A, born through a surrogacy arrangement in Nigeria.

Case Background

Mr and Mrs H, a couple of Nigerian descent, embarked on a surrogacy journey following unsuccessful attempts to conceive naturally. They engaged with the Lifelink Fertility Clinic in Nigeria, resulting in the birth of their daughter, A, in early 2023. DNA tests confirmed Mr H as the biological father, but the surrogate mother's identity remained unknown, complicating the legal proceedings.

Legal Framework

The application was made under the Human Fertilisation and Embryology Act 2008, section 54, which stipulates conditions for granting parental orders. A critical requirement is the surrogate mother's unconditional agreement to the order, unless she cannot be found or is incapable of giving consent. The court had to navigate these legal provisions given the anonymity of the surrogate.

Challenges and Evidence

The anonymity of the surrogate posed significant challenges. The applicants had requested an anonymous arrangement to avoid complications and stigma associated with surrogacy. Despite multiple hearings and requests for documentation, the surrogate's identity remained elusive.

The court examined various documents, including a purported surrogacy agreement, financial transactions, and correspondence with the clinic. Although the documentation was incomplete and sometimes contradictory, it supported the existence of a surrogacy agreement with Lifelink Clinic.

Parental Order Reporter Observations

Jane Houldsworth, the Parental Order Reporter, initially did not recommend granting the order due to insufficient evidence. However, after reviewing additional documents and considering the welfare of A, she supported the order as being in the child's best interests.

Judgment and Conclusion

Sir Andrew McFarlane concluded that the requirements of section 54 were met, particularly the provision allowing the order when the surrogate cannot be found. He emphasised the importance of A's welfare, noting her positive upbringing by Mr and Mrs H, who have been her de facto parents since birth.

The judgment highlighted the complexities of international surrogacy arrangements, especially those involving anonymity. The court's decision underscores the need for careful scrutiny of such cases to ensure compliance with legal standards and protect the child's welfare.

Implications and Future Considerations

The case serves as a cautionary tale for prospective parents considering anonymous surrogacy. It illustrates the legal hurdles and emotional challenges that can arise from such arrangements. Future applicants are advised to avoid anonymity to facilitate smoother legal proceedings.