The president of the Family Division has told parents considering unlawful surrogacy abroad to ‘think again’, after a couple in their late 60s commissioned the birth of two babies.

Ruling in Re Z (Unlawful Foreign Surrogacy: Adoption), Sir Andrew McFarlane explained that the applicants, Ms W and Ms X, had commissioned the babies for around £120,000 at a foreign surrogacy clinic in the Turkish Republic of Northern Cyprus. Surrogacy and the placement of children with same-sex couples are both unlawful in that jurisdiction. The clinic used a dozen or more women from Ukraine as surrogate mothers, the High Court heard. 

The two children, born on the same day, were carried by two different surrogate mothers, and two individuals - chosen by the applicants ‘to replicate their own racial characteristics’ - donated eggs.

Once back home in the UK, the only route by which the applicants could lawfully become parents of the two children was to apply to adopt them. McFarlane agreed to make an adoption order, explaining the children ‘were being well cared for’, but warned his decision ‘should not be taken as any precedent that, in any future case on similar facts, an adoption order will be made’.

McFarlane added that courts refusing to grant adoption to couples in a similar situation would have 'the result that the child that they have caused to be born may be permanently State-less and legally parent-less'.

Sir Andrew McFarlane

Sir Andrew McFarlane warned his decision ‘should not be taken as any precedent that, in any future case on similar facts, an adoption order will be made’

McFarlane said the circumstances suggested all four women in the arrangements were ‘being exploited for commercial gain’ by those running the unlawful operation. ‘The motives of the two applicants in wanting to become parents of babies in their late 60s would seem to have been entirely self-centred, with no thought as to the long-term welfare of the resulting children’, he added.

‘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. 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.’

 

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