Naïve and an abdication of the most basic responsibility: scathing High Court judgment sets down essential surrogacy guidelines

The route to parenthood through surrogacy can be challenging and most intended parents research this thoroughly and navigate these troubled waters with expert help. Sound planning and preparation gives new parents a resilience to the surprises of life that may unfortunately intervene.

However, in this scathing judgement reported as Z (Foreign Surrogacy) [2024], you can feel the visceral frustration coming from one of the most senior judges of the family division and it should make you pause and realise both why that planning is also important from a legal perspective and the clear lessons that need to be taken away. As a result of their decision, Mrs Justice Theis perceived the intended parents to have taken 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.”

The intended parents (“IPs”) were a homosexual couple, both from countries that do not permit homosexuality. The agency was based in Country Y where the applicants knew same sex surrogacy arrangements were not permitted, but they told IPs the treatment would take place in Cyprus.  The IPs agreed X would be the surrogate and the signed contract between A and X for A to sign is dated 23 May 2022 stated to be in Nicosia, Cyprus with the embryo transfer to take place in an appropriate medical facility in the territory of the Turkish Republic of Northern Cyprus.  It was known that X came from Country Y.

The applicants ended up having little or no control as to where their child was actually born.  In the end, the child was born in a jurisdiction where the applicants were told surrogacy arrangements that involved same sex relationships, such as the applicants, are not permitted. The judge observes that those basic facts alone demonstrate how difficult the whole birth and case starts.  Her Ladyship is frank in her judgement that the decision to not take legal advice before the pregnancy is described as “at the very least, extremely naïve”.

It is entirely understandable.  The desire to become a parent can, sometimes, be a single and blinding light towards a dream that has been cruelly pulled away from them.  That same light blinds them to the reality of the law that they must work within and regrettably also, sometimes, leads to a lack of due diligence by intended parents.  Mrs Justice Theis states clearly in the opening part of her judgment, “it remains, in my judgment, an abdication of the most basic responsibility of intended parents in such circumstances not to have clarity about the essential information outlined in paragraph 2 and 4 above.  In this case the consequences of the applicants behaviour resulted in them all being in a precarious legal position at the start of Z’s life.”

The learned judge wanted the message “to go out loud and clear” for all intended parents embarking on a surrogacy arrangements to have a clear legal advice on the surrogacy journey as a whole.  Intended parents need to understand:

It is not only the IPs, but also the agency who comes under fire.  Some agencies lack their own understanding or, occasionally, mislead IPs to get the contract signed (see Y & Anor. v V & Ors [2022]).   In this case, the most simple terms of the surrogacy agreement with the agency left the applicants exposed to uncertainty.  If what the applicants say is correct about the agency too, then the judge was equally deprecating of the behaviour by the agency; in the end it was always open to the applicants not to sign the agreements though and the responsibility rests with them.

A guide of the key issues any person considering embarking on a surrogacy agreement should consider before entering any arrangement was produced by specialist counsel in the case, Mr Andrew Powell and Ms Catherine O’Connell, and was endorsed and added to by the judge:

1. What is the relevant legal framework in the country where the surrogacy arrangement is due to take place and where the child is to be born? Put simply, is such an arrangement permitted in that country?
2. When the child is born will the intended parents be recognised as parents in that country, if so how? By operation of law or are the intended parents required to take some positive step and, if so, what steps need to be taken and when (pre or post birth)?
3. What is the surrogate’s legal status regarding the child at birth?
4. If the surrogate is married at the time of the embryo transfer and/or the child’s birth what is the surrogate’s spouse’s legal status regarding the child at birth?
5. If an agency is involved, what role do they play in matching the surrogate with the intended parents?
6. What information, preparation or support has the surrogate had about any proposed surrogacy arrangement?
7. Does the surrogate speak and/or read English? If not, what arrangements are in place to enable her to understand any agreement signed?
8. Will the intended parents and the surrogate meet and/or have contact before deciding whether to proceed with a surrogacy arrangement?
9. When will the agreement between the intended parents and surrogate be made, before or after the embryo transfer, and what are the reasons for it being at that time?
10. What arrangements are proposed for contact between the intended parents and the surrogate during the pregnancy and/or after the birth? For example, is it only via the agency or can there be direct contact between the intended parents and the surrogate?
11. Which jurisdiction will the embryo transfer take place and which jurisdiction will the surrogate live in during any pregnancy?
12. Can the jurisdiction where the child is to be born be changed at any stage and, if so, by whom and in what circumstances?
13. What nationality will the child have at birth?
14. Following the birth of the child what steps need to be taken for the child to travel to the United Kingdom, what steps need to be taken to secure any necessary travel documentation for the child and how long does that take?
15. Will the intended parents need to take any separate immigration advice to secure the child’s travel to the United Kingdom and what is the child’s status once the child has arrived in this jurisdiction?
16. Finally, keeping a clear and chronological account of events and relevant documents is not only important for the purposes of a parental order application but also, importantly, retains key information regarding the child’s background and identity.

It is always heart wrenching to read cases like this when they come before the court.  This is a real family and a real child who have been through an extremely stressful situation which is hard for most people to even start to imagine.

The above helpful guide is a consolidation of case law and good practice, adding to the wealth of material available to intended parents and surrogates to help avoid pitfalls.  This may be a scathing judgement of almost everyone involved, but I am reminded that fortunately most cases do not require such glaring attention from one of the most senior Family Court judges and lead judge for HFEA matters.  This should be a clear lesson to other IPs, clinics, agencies and lawyers about why legal advice should be taken before they even have a pregnancy.

The moral of this story is simple too: Learn from other people’s mistakes.

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.