Navigating international surrogacy: what legal requirements should expectant parents in the UK be aware of?

Two recent international surrogacy cases have caught my eye this month, both of which highlight the need for anyone embarking on the surrogacy or assisted reproduction journey to have early specialist advice on how to ensure that the legal requirements to acquire parental status in England, can be met. Moreover, they highlight the critical importance of the safeguards built into our surrogacy laws which are designed to protect surrogates from exploitation and which guard against commercial surrogacy in this country.

Each case involved the use of surrogacy agencies in a country where surrogacy is unlawful and where the placement of children with same-sex couples is not permitted. In each case the child was brought back to England by their intended parents and encountered difficulties in obtaining parental orders. The first, (Re Z [2025] EWHC 339), involved two four-year old children (genetic siblings) who were carried by two different surrogate mothers (using a donation of an anonymous donor of eggs and an anonymous donor of sperm) following a surrogacy arrangement by Ms W and Ms X who were resident in the UK and who were in their 70s and late 60s. The babies were each born by caesarean section on the same day at the direction of the clinic (which operated surrogacy contracts 'on some scale' and used women from Ukraine as surrogate mothers) and handed to the couple within a day of their births. The contracts signed by Ms W and Ms X revealed that £120,000 was paid for the creation of these two children. 

This was clearly a commercial rate (not permitted) rather than a sum sought to recover the surrogate's expenses (which is permitted).  The couple thought they would only have to stay in Cyprus for a short time after the babies were born. They were wrong. Having registered the birth in Cyprus (without making reference to the surrogacy arrangement, or that the babies had been born to two different mothers, they discovered that the children could not been afforded citizen status in Cyprus as their birth mothers were Ukrainian nationals. Predictably, the clinic became less helpful to the intended parents who then found themselves without paperwork to establish the surrogacy (save for that which falsely stated that Ms X was the children's mother). The Home Office, understandably, refused to allow the two children to enter the UK with the couple and it took four years before leave to enter was given. So, at the age of four, the children had arrived in England. They remained stateless. Given neither Ms W nor Ms X were genetically related to the children, it was not possible to apply for parental orders and so the only route by which they could become parents of the two children was to adopt. 

It was surprising, said the President, that two individuals embarking on this process had not given any consideration to the impact on the children of their age and the fact that when the children are in their teens, one of their parents would be in her 80's and the other in her mid-70's. Nobody knew anything more than the first names of the two surrogate mothers, who had likely returned to Ukraine after giving birth and so their consent could not be given.  Had the court been asked whether the couple's plan was a good one (or compatible with domestic policy) before they set off to Cyprus the court would have undoubtedly responded in the negative. But there were lessons to be learned.  Whether applicants are in a same-sex or heterosexual relationship, the same rules apply for any couple contemplating commissioning the birth of a child through the service of a foreign surrogacy agency. 

The issues in this case raised significant legal and public policy concerns, not least that there may be elements of exploitation underlying the circumstances of these surrogacy agreements.  The court was placed in an impossible position in many respects, and in making such adoption orders in the future, the Home Department will consider whether adoption should be opposed on public policy grounds. The approach taken by Ms W and Ms X was not consistent with guidance about surrogacy arrangements and should not be followed. 

The second case that caught my eye was cited by the President in the case above and is the decision of Theis J in Re Z (Foreign Surrogacy) [2024] EWFC 304 which raises similar issues and which generated a comparable level of judicial concern. Theis J set out a list of 'key issues' any person considering embarking on a surrogacy arrangement (particularly one involving a foreign jurisdiction) should consider before they proceed and so it is a 'must read' for those hoping to become parents through surrogacy.

These judgments highlight the complexities surrounding surrogacy arrangements involving a foreign jurisdiction and the risks that UK citizens travelling overseas for surrogacy may be exposed to and which may result in exploitation. The Government has published guidance on surrogacy overseas that is available online, and as the President emphasises, specialist legal advice is always recommended.

Working alongside my colleagues who specialise in immigration, tax and succession issues on surrogacy when advising my international surrogacy clients, I couldn’t agree more… 

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