Senior judge issues warning to would-be parents over commercial foreign surrogacy arrangements

The President of the Family Division, Sir Andrew McFarlane, has put would-be parents of any age who are contemplating entering into a commercial foreign surrogacy arrangement on notice that the courts in England and Wales may refuse to grant an adoption order, with the result that the child that they have caused to be born may be permanently State-less and legally parent-less.

In Z (Unlawful Foreign Surrogacy: Adoption) [2025] EWHC 339 (Fam), a case where one of the applicants for an adoption order was over 70 years old and the other was “fast approaching that age”, Sir Andrew McFarlane said: “Put bluntly, anyone seeking to achieve the introduction of a child into their family by following in the footsteps of these applicants should think again.”

The Family President’s judgment came some months after he determined applications for the adoption of two four-year-old children, Y and Z. They were conceived following anonymous donations, but carried by two different surrogate mothers.

The surrogacy arrangement had been commissioned by Ms W and Ms X. The applicants, who were in a long-established and enduring relationship and were resident in the UK, had established a connection with a foreign surrogacy clinic.

They had initially understood that the clinic was in Southern Cyprus, but they came to understand – only much later – that it was operating in the Turkish Republic of Northern Cyprus.

The Family President said his understanding was that surrogacy was unlawful there. The placement of children with same-sex couples was also not permitted by law.

According to Sir Andrew, the clinic, on the information the court had, “seemingly operated on some scale” and used women from Ukraine as surrogate mothers. 

Ms W and Ms X paid around £120,000 for the creation of the two children.

Sir Andrew noted that under the Human Fertilisation and Embryology Act 2008 (HFEA), s 54(8), the court “cannot grant a parental order to applicants who apply for a parental order following surrogacy (which Ms W and Ms X cannot do because neither is genetically related to the children) unless it is satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the applicants for the surrogacy arrangements, unless the payment is authorised by the court”.

He added: “Even allowing for the fact that this was surrogacy involving two children and two surrogate mothers, £120,000 is a very significant amount of money. It was, in reality, a commercial rate, rather than one that simply sought to recover the surrogates' expenses.”

Ms W and Ms X subsequently encountered a number of hurdles, including the need for the birth of each of the children to be registered. Ms X was told by the clinic to go to the Register Office and sign a form in a foreign language. She later found out that she had been registered as the mother of the children. There was no mention in her dealings with the Cypriot authorities of the surrogacy arrangement or the fact that the children had been born to two different mothers, Sir Andrew said.

The judge noted that it also became clear that the fact of birth in Northern Cyprus did not afford status to the children as citizens of Northern Cyprus.

“In addition, of course, as yet, they had no legal connection, in terms of one that would attribute status, to either of the two applicants that would, or could, be recognised in the United Kingdom (the birth certificates having been plainly issued on an incorrect basis),” the Family President said.

Ms W and Ms X declined to agree to a false story that Ms X was indeed the natural mother. “However, the result of that was that they did not have any paperwork from the clinic to establish the surrogacy and the paperwork they did have was on the false basis that Ms X was the children's mother.”

The Home Office refused to allow Y and Z to enter the UK with Ms W and Ms X. It took four years before leave to enter was given by the First-Tier Tribunal. The Home Office accepted the decision after being refused permission to appeal by the FTT and the Upper Tribunal.

The Family President said: “The good news about that saga is that, seemingly, the couple and the children, the four of them together, have come through what will have been a very stressful and most unwelcome stage in their respective lives, not unscathed, but in a positive frame of mind. In addition, in the months that followed their return, they have done well to establish family life and an orderly way of living with the children here.”

The judge noted that it was not possible for the applicants to apply for a parental order as the gametes of neither applicant were used to bring about the creation of the embryo.

The only route by which these applicants could become, in law, parents of these two children was, therefore, to apply to adopt them, Sir Andrew said.

The conclusions of an assessment by a local authority social worker, “looking at the circumstances in the round and in detail, and of the welfare of each of the two children individually” were endorsed by the Children’s Guardian.

The Family President said: “During the hearing, I expressed, in strong terms, my concern about the whole project that these two adults had embarked upon. I described the wisdom, in terms of the welfare of any children created by such an endeavour, as being highly questionable. I suspected, although I obviously did not know, that if they had their time again, Ms W and Ms X, knowing what they now knew, would not embark upon this particular course in order to bring children into their family.

“It was, however, absolutely clear that these children were being well cared for, were meeting their milestones, stimulated, happy and thoroughly embedded in every way, socially, emotionally, psychologically with their two parental figures and no doubt the wider family and the wider community within which they now lived.”

The judge therefore held that it was in the children's best interests for that arrangement to be consolidated and made permanent by adoption orders. “No lesser order, for example, a child arrangements order or even a special guardianship order, would achieve the necessary degree of life-long certainty that these two children are going to need.”

He had pointed out when he determined the applications, however, that the children would need particular care going forwards. He said he was struck by the social worker’s comment that the applicants had not given any consideration of the impact on the children of having parents who were so much older. The assessment had noted that one of the applicants would be in her 80s when the children were in their early teens, and the other would be in her mid-70s.

Sir Andrew dispensed with parental consent on the basis that nobody knew anything more than the first names of the two surrogate mothers. The clinic had also resisted providing any more information. The judge said the surrogates had almost certainly returned to Ukraine and could not be found.

Turning to the lessons to be learned from the case, the judge said it "should be plain, but lest there be doubt, the observations that now follow apply with equal weight to any applicants, whether in a same-sex or heterosexual relationship, who may be contemplating commissioning the birth of a child through the services of a foreign surrogacy agency".

The Family President noted the submissions on behalf of the Government and in particular the Home Office, the Department for Health and Social Care and the Department for Education expressing concerns that this case in all but name was a commercial surrogacy arrangement that resulted in two children being rendered stateless.

The submissions said that where the Home Office or the Government is on notice of similar cases in future “it may, in appropriate cases to be considered on the individual facts, oppose applications made before the court and/or appeals on related immigration grounds before the First-tier Tribunal or the Administrative Court; and may seek findings in respect of commercial surrogacy and/or exploitation”.

The Government said that the Home Office was concerned that the court had been placed “in an impossible position”.

The Family President endorsed the list of key issues set out by Theis J in Re Z (Foreign Surrogacy) [2024] EWFC 304 (at paragraph 4) that any person considering embarking on a surrogacy arrangement (particularly one involving a foreign jurisdiction) should consider before they proceed. He also endorsed two additional elements that the Government put forward.

Sir Andrew said he shared the high level of concern that was expressed in the Government's submissions.

The account of the circumstances surrounding the birth of these two children strongly suggested that all four women at the centre of the arrangements were being exploited for commercial gain by those running an unlawful operation, he noted.

The judge continued: “The motives of the two applicants in wanting to become parents of babies in their late 60's would seem to have been entirely self-centred, with no thought as to the long-term welfare of the resulting children. It was astonishing to learn, and have confirmed by their solicitor, that the applicants had not given any consideration to the impact on the children of having parents who are well over 60 years older than they are. It is likely that when they are in their early teens, these two young people will become carers for their 80 year old adopted parents. The only sensible decision that the applicants made, as I observed during the hearing, was to commission the birth of two children so that, at least, these two full siblings will have each other as they grow up.”

The judge warned that the fact that the court felt obliged to make adoption orders in this case, should not be taken as any precedent that, in any future case on similar facts, an adoption order would be made.

“In any event, the route taken by these applicants leading to the position of even being able to apply for adoption, demonstrates the precarious nature of their circumstances and those of the children. The applicants had planned a short visit to Cyprus, yet it took four years for their entry to the UK to be granted, and that was only after the First-Tier orders and Upper Tribunal refusal to grant the Home Office permission to appeal,” he said.

The Family President concluded: “The publication of this judgment, and the clear indication that the government may, in any future case, oppose the making of adoption orders, should put would-be parents (of any age) who are contemplating entering into a commercial foreign surrogacy arrangement on notice that the courts in England and Wales may refuse to grant an adoption order (or if HFEA 2008, s 54(1)(b) or s 54A(1)(b) is satisfied, a parental order), with the result that the child that they have caused to be born may be permanently State-less and legally parent-less.

“Put bluntly, anyone seeking to achieve the introduction of a child into their family by following in the footsteps of these applicants should think again.”