For people who long to have children, but can’t, the scientific advances through IVF (and surrogacy, in particular) can provide a much needed lifeline. But just because it may be scientifically possible, does not necessarily mean that it is advisable.
This was explored in the recent judgment handed down by Sir Andrew McFarlane, President of the Family Division, on 19 February 2025. The case is a sobering read: women were exploited; the children (currently age 4) were left stateless, without a passport and are now destined to become their parents’ carers by the time they are teenagers.
The unusual facts were caused by two women (referred to as Ms W and Ms X), who in their late-sixties decided to embark upon a surrogacy journey “with no thought as to the long-term welfare of the resulting children“, with their motives being “entirely self-centred“.
The children are full genetic siblings from an anonymous sperm and egg donor. They were carried by two different Ukrainian mothers and were born on the same day via caesarean section (there was nothing to suggest that the simultaneous caesareans were for medical reasons). The clinic was operating in the Turkish Republic of Northern Cyprus, where it was understood that surrogacy is unlawful, nor was it permitted to place children with same-sex couples. Ms X and Ms W paid £120,000 to the clinic. This clinic ultimately encouraged them to falsify that Ms X was the children’s birth mother, which Ms X and Ms W refused to do. There were numerous red flags.
This case is a stark warning for anyone considering an international surrogacy arrangement about the importance of taking proper legal advice in advance, and the additional risks of engaging an unlawful foreign clinic.
The consequences
Ms X and Ms W did not appear to have properly considered the immigration ramifications. Ms W and Ms X were trapped in Cyprus for four years as the Home Office refused to allow the children to enter the UK. Whilst the children were eventually permitted to enter the UK, they still remained stateless.
Ms W and Ms X were unable to apply for a parental order, which is a court order which would make them the legal parents of the children. Section 54 of the Human Fertilisation and Embryology Act 2008 sets out the requirements for a parental order, including the requirement of a genetic connection to at least one of the applicants (which was not the case) and the prohibition of commercial surrogacy (the sum of £120,000 was considered a “commercial rate“). If the correct steps are not taken, the wrong people may end up being recognised as the legal parents (e.g. the surrogate and potentially the surrogate’s husband).
As Ms X and Ms W could not apply for a parental order, they sought to adopt the children. Putting aside the questionable decision of actively choosing to become parents to twins as pensioners, the Judge recognised that the children were nevertheless being well cared for and were happy in their family unit. The Judge considered that it would be in the children’s best interests for an adoption order to be made. However, the Judge noted that “the fact that the court felt obliged to make adoption orders in this present case, should not be taken as any precedent that, in any future case on similar facts, an adoption order will be made“.
Key considerations for international surrogacy arrangements
Embarking on IVF, whether or not through surrogacy, can be all-consuming and daunting. It is therefore important for prospective parents to ensure they have obtained the correct advice on the key issues as noted in this case (as originally set out in the decision of Theis J in Re Z (Foreign Surrogacy) [2024] EWFC 304), and as summarised below.
Legal framework & parental status:
- The legal framework in the country of the surrogacy arrangement and birth.
- Whether the intended parents will be recognised as legal parents, and if this is this automatic or requires legal steps.
- The legal status of the surrogate and her spouse (if applicable) at the child’s birth.
Surrogacy process & agreements:
- The role of the surrogacy agency in matching surrogates and intended parents.
- The surrogate’s preparation, support, and language comprehension.
- The timing of the surrogacy agreement (before or after embryo transfer) and the reasons for this.
- The proposed contact arrangements between the intended parents and the surrogate during and after pregnancy.
Jurisdiction & nationality:
- Which jurisdictions may be involved in the embryo transfer, pregnancy, and birth.
- Whether the jurisdiction the child is to be born can change and, if so, in what circumstances.
- The child’s nationality at birth.
Post-Birth Procedures & Immigration:
- The process and timing for the child to obtain travel documentation to travel to the UK, and whether separate immigration advice will be needed.
- The child’s legal status upon entering the UK.
Record-keeping & Government engagement:
- The importance of maintaining a clear, chronological record of events and documents.
- Consideration of early engagement with relevant UK government departments (Home Office, Department for Education, Department of Health and Social Care), where relevant.
These areas may, at first, seem overwhelming. But it will be far better for intended parents to be fully informed of what will happen when they apply to the English courts for a parental order. Expert legal advice can enable you to enter into an international surrogacy arrangement with the correct understanding of the legal position. As Sir Andrew McFarlane noted, “anyone seeking to achieve the introduction of a child into their family by following in the footsteps of these applicants should think again“.
How Wedlake Bell can help
Our team of expert family lawyers has a wealth of experience in navigating complex international surrogacy arrangements and all modern family-building matters. We ensure that all legal aspects are meticulously managed, protecting the rights of intended parents, surrogates, and children. With a focus on sensitive and professional handling of emotional issues, we offer peace of mind to help clients navigate this journey as smoothly as possible. Our proven track record makes us a trusted partner in these matters.
What sets our practice apart is our team’s experience in child protection and social work, which provides a deeper understanding of the legal and welfare considerations in surrogacy and modern family law. We place the children’s best interests at the centre of our work and provide both expert legal guidance and reassurance to clients throughout the process.
Please contact Sarah Infante or another member of our specialist family law team.