Surrogacy arrangements are more popular than ever. The legal framework surrounding the making of parental orders in surrogacy cases in the UK is well-established. It is governed by section 54 of the Human Fertilisation and Embryology Act 2008, whose criteria are considered by the court together with the overall lifelong welfare of the child. Where those criteria are satisfied, the intended parents of a child born to surrogacy can obtain a parental order and become the child’s only legal parents.
While the criteria for obtaining legal recognition in England and Wales are reasonably straightforward (although not without difficulties), the situation facing couples who seek to enter into a surrogacy arrangement overseas can be very complicated. There are many countries where surrogacy is not permitted and/or same-sex relationships are illegal. Some countries that allow surrogacy exclude same-sex couples from creating families that way.
Such arrangements can be fraught with difficulties, as demonstrated in the recent case of Re Z (Foreign Surrogacy) [2024] EWFC 304. Re Z concerned a same-sex couple who entered into a surrogacy arrangement overseas, spanning several different jurisdictions. Although they were assured that the procedures and embryo transfer would take place in Cyprus, the surrogacy agency engaged by the couple was based in a country that did not permit surrogacy for same-sex couples. The couple were advised by that agency that only one of them should sign the agreement, to ‘avoid any issues’; and so initially they deliberately concealed the nature of their relationship from the surrogate. While the embryo transfer took place in Cyprus, the child was born in a different country, one where same-sex surrogacy was illegal. The agency advised the couple not to inform the embassy about their relationship or of the birth via surrogacy. After the child was born and her birth registered, she had to travel to yet another country before she was able to obtain a visa to enter the UK. So far, then, a total of three different jurisdictions were involved in the process of Z’s birth, and in two of those same-sex surrogacy was illegal and the fact of the couple’s relationship was concealed.
Their subsequent reliance on assurances given to them by the agency highlights the precarious nature of the agreement and the legal status of Z. Had their status been discovered in the country where Z was born, the risks to Z and her own legal status would have been great. The surrogacy agreement would have been illegal. What would have been the legal status of both the intended parents and Z had she required longer-term medical treatment? Ultimately the legal position of not only the intended parents but Z would have been unknown if the nature of the couple’s relationship was discovered, which would have put her at a serious risk of harm.
A myriad of public policy issues and complexities therefore arose. The practical effect was that the intended parents ended up having little or no control over where their child was born, were unable to travel to England with her until she was eight months old, and thereafter faced a lengthy process to have their status recognised in England.
Unsurprisingly, the High Court was critical of the couple’s lack of consideration of the issues that they were bound to face before they entered into their surrogacy arrangement. This case reinforced the importance of parties seeking legal advice before signing any agreement. Lack of research, lack of legal advice and a naive pursuit of a desire to have a child were no defence. However, the child’s welfare would have been adversely affected had the court refused to grant a parental order based on public policy, and so the parental order was granted. The judgment contains an essential (but not exhaustive) list of key issues that any person considering surrogacy should address before they enter into such an agreement.
Re Z is yet another reminder that surrogacy can be a risky, stressful and complicated process. Intended parents must ensure they take specialist legal advice before embarking on any such arrangements. They must ensure they carefully consider all aspects of the proposed arrangement at each stage and that these are clearly set out in the written agreement. Consideration needs to be given beforehand to the legal framework surrounding not only the intended child’s birth and registering of the birth, but also to the steps that the intended parents can or should take in the jurisdiction where the child is born so that they can secure their legal relationship with the child. Ignorance of all the risks and complications that can arise when couples embark on cross-border surrogacy, often in multiple jurisdictions, can potentially put the child at risk of harm and may result in a prolonged separation between the child and their parents.
The Law Commission published its final report on reforming the law on surrogacy in 2023. It essentially seeks to encourage more intended parents to embark on such arrangements in the UK, rather than overseas. That indicates that little will change regarding the approach in England and Wales to surrogacy arrangements entered into overseas – and certainly nothing that would prevent the issues that arose in Re Z.
Laura Morley and Charlotte Baker are barristers at 4PB, London
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