Caution by the President of the Family Division after elderly couple commissions “unlawful” international surrogacy agreement

The case involved an application from a same-sex couple Ms W and Ms X to adopt two four-year-old children, Y and Z born via surrogacy. At the time of the application, both Ms W and Ms X were in their late 60s.

The couple engaged a surrogacy clinic they believed to be in Southern Cyprus but was later revealed to be operated from the Turkish Republic of Northern Cyprus (TRNC) where surrogacy is illegal and the placement of children with same-sex couples is prohibited. The children were born on the same day via two surrogate mothers from Ukraine using donated eggs and sperm meaning the couple was not genetically related to the children, although they chose the two individuals who donated the gametes to create the embryos to replicate their own racial characteristics. A significant sum of money was paid by Ms W and Ms X in the region of £120,000.00, far greater than that seeking to recover the surrogates’ expenses.

The children were unable to acquire citizenship from either TRNC or Ukraine and they had no biological or legal connection to Ms W or Ms X recognisable in England and Wales and consequentially were stateless and denied entry into the UK by the Home Office. It took four years before leave to remove was given and, for the first time, the children were able to come to England with Ms W and Ms X.

An application for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 can only be made if the gametes of the applicant or at least one of two applicants, were made to bring about the creation of the embryo. This was not the case for these children and so it was not possible for Ms W and Ms X to make such an application. The only remaining route to become, in law, parents of the two children was to apply to adopt them.

What followed the adoption order application was a thorough adoption assessment by the local authority in which the judge raised his concern about the “wisdom in terms of the welfare of any children created by such an endeavour, as being highly questionable”. Though the children were clearly being well cared for by Ms W and Ms X, it was apparent that no thought had been given to the impact on the children of having parents of such an old age. The judge criticised the motives of the applicants in wanting to become parents at their late age as “entirely self-centred, with no thought as to the long-term welfare of the resulting children” as their solicitor confirmed they had not considered how it would be for their children who, in their early teens will have parents in their 80s.

Although the applicants were openly criticised for their short-sightedness, it was clear that it was in the children’s interests to be adopted because they required the degree of life-long certainty afforded by such an order.

Nevertheless, the court had grave concerns about the circumstances surrounding the surrogacy agreement and suggestion that this was a commercial agreement which resulted in two children being rendered stateless. The potential exploitation of the applicants and surrogates by the TRNC agency raised broader issues of human rights. Critics of commercial surrogacy argue that it reduces women to vessels for reproduction which raises ethical concerns and is contrary to public policy in the UK. Due to the high level of concern about the circumstances of the case, submissions were made on behalf of the government (HMG) and a warning given that, in the future, where the Home Office and HMG is on notice of similar cases, it may oppose applications before the court and seek findings in respect of commercial surrogacy and/or surrogacy.

This case acts as a sobering reminder of the potential for adverse consequences of international surrogacy, both for the children and adults involved in the process. For children, there is a real risk of them being rendered stateless which might prevent their access to essential services like healthcare and education or ability to obtain a passport. Another serious concern is the potential for exploitation of surrogates, particularly in jurisdictions where surrogacy is less regulated or where women may be vulnerable due to economic circumstances. Commercial surrogacy is prohibited in the UK and the next couple who embarks on a surrogacy journey in a country not recognised by the UK may not have such a favourable outcome.

The court’s ultimate consideration in granting such orders is whether it is in the best interests of the child(ren) to do so. It was not disputed that the children in this case were currently being very well cared for by the applicants but the duty of the court in applications for an adoption or parental order is to consider the welfare of the child(ren) throughout their life. Given the applicants’ ages, this was in question. The court must consider the broader implications of the child(ren)’s wellbeing, beyond just childhood, including their future in terms of identity, legal recognition and stability.

Sir Andrew McFarlane endorsed Mrs Justice Theis’ judgment in Z (Foreign Surrogacy) [2024] and the factors listed which any person considering embarking on a surrogacy agreement should consider before engaging in such an agreement. A useful article discussing this significant judgment can be found here. Re Z (Foreign Surrogacy: Adoption) [2025] is further warning for intended parents to obtain specialist legal advice before starting their surrogacy journey because as more of these judgments are released, how much longer can intended parents claim ignorance of the potentially adverse consequences of surrogacy agreements abroad?

Our Modern Families team have leading experts, best known for their work in legal parenthood and surrogacy. Lead by Andrew Spearman, a specialist senior practitioner in surrogacy law, the team advise on complex surrogacy matters and complex cross-border family planning.

You can arrange a consultation with them and explore these issues and ensure full understanding of the law as you look to build a family, whether in the UK or abroad.