reforming surrogacy law

As reported in previous blog posts, there have recently been several cases where the court had to determine whether a parental order (or adoption order) could be granted in favour of intended parents after they had engaged in a cross-border surrogacy arrangement with an anonymous surrogate.

Last month, in B & Another v D & Another, Theis J was again faced with this difficult issue, ultimately granting the parental order sought. Despite reiterating the warnings espoused in the earlier cases, this judgment seems to reaffirm the view that – no matter how ethically challenging the circumstances of a surrogacy arrangement are – there is an inevitability to intended parents being able to obtain legal parenthood.

The cases

The four cases, all reported this year, are:

Re Z (Unlawful Foreign Surrogacy: Adoption) – heard in July 2024, and reported in February 2025. The court dispensed with the requirement for consent to an adoption order. The clinic refused to provide identifying information about the surrogates, and the intended parents knew only their first names.

Re H (Anonymous Surrogacy) – heard in January 2025, and reported in February 2025. The court held that the surrogate was incapable of being found under s 54(7) HFE Act 2008 because the intended parents did not have any knowledge of the surrogate in order to facilitate obtaining her consent.

Mr & Mrs X v Ms Z – heard and reported in March 2025. The Parental Order Reporter was able to have a telephone meeting with the surrogate who confirmed her identity and consent, so the s 54(6) requirement for consent was met, despite the intended parents never knowing the surrogate.

B & Another v D & Another – heard and reported in October 2025. The court held that the surrogate was incapable of being found because the identity of the surrogate was never disclosed, and the clinic would not provide additional information.

There are some notable similarities between the cases:

First, most obviously, all these cases involved surrogates whose identity was not disclosed to the intended parents. In Re H, the intended parents stated that they felt an anonymous arrangement would result in fewer problems and less stigma, wanting to avoid ‘unnecessary involvement and attachment’ [para 14]. There was no clear articulation in the other judgments as to why the intended parents pursued the arrangement in an anonymous nature, but it is clear that the idea that it would be ‘easier’ for the parties to the arrangement to remain unidentifiable is certainly not made out when the parental order decision comes to be made.

Second, the jurisdictions that the surrogacy arrangements took place in operate in a regulatory ‘grey’ space. In three of the four cases, the surrogacy agency was in Nigeria, where surrogacy is unregulated. In Re Z, the surrogacy agency was in the Turkish Republic of Northern Cyprus where surrogacy, and the placement of children with same-sex couples, is illegal (in circumstances where it was a female same-sex couple entering into the arrangement). By engaging in surrogacy in jurisdictions where the legal framework is not clear, there are heightened risks of unethical practice which may also impact on the process to obtain a parental order once back in the UK.

Third, the surrogacy agencies were unhelpful at best, obstructive at worst, when the intended parents sought advice or information relating to the surrogate.    

Notwithstanding the problems posed by the anonymity of the surrogate, the cases seem to reaffirm the general perception that intended parents can be reasonably assured of the outcome of a parental order application, regardless of the circumstances of the arrangement. In Mr & Mrs X v Ms Z, information about the surrogate was made available for the Parental Order Reporter to have a telephone meeting and ascertain her consent; as such, the s 54(6) requirement for consent was satisfied. In the other two parental order cases, the court felt able to dispense with the surrogate’s consent on the basis that the surrogate was incapable of being found under s 54(7). Finally, in Re Z, the court was satisfied that consent to the adoption order could be dispensed with based on the child’s welfare.

Nonetheless, there were strong warnings given in all judgments about future cases of this type.

The warnings

In Re Z, Sir Andrew Macfarlane stated, amongst other warnings, that the case:

Should put would-be parents 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 [or 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 [para 35].

There were other public policy issues posed in this case, beyond the anonymity of the surrogates, but this judicial warning nonetheless would put intended parents on notice as to their conduct impacting on the outcome of a parental order (or adoption) application.

Subsequently, in Re H, Sir Andrew Macfarlane spoke of how the court must ‘scrutinise parental order applications with care to ensure compliance with the statute, particular so when the application includes a foreign element’ [para 18]. As outlined in an earlier post, there are added complications with surrogacy arrangements carried out in Nigeria due to concerns, in an adoption context, of child trafficking and corruption: the anonymity of the surrogate can ‘raise the level of suspicion that the arrangement may have been otherwise than what it is said to be’ [para 19].

In Mr & Mrs X v Ms Z, Theis J took the opportunity to reiterate the warnings from Re Z, stating that:

Every step should be taken by intended parents to avoid engaging with any surrogacy arrangement that proposes an anonymous surrogate, or even one that seeks to limit the intended parents contact with the surrogate. Any such lack of transparency is likely to impact on this court’s ability to be able to assess any consent being relied upon, which could result in a parental order not being made [para 7].

Most recently, in B & Another v D & Another Theis J re-asserted this concern again with a simple warning:

Put simply, intended parents should avoid embarking on a surrogacy arrangement where they do not meet, have any knowledge of or means of contacting the surrogate who carries their much wanted child [para 4].

The risk of continuing to engage with surrogacy on an anonymous basis may be, as stated in the judgment, that the time comes to ‘reconsider the approach taken in Re QR regarding dispensing with the surrogate’s consent’ [para 5].

The consistent message from these judgments, therefore, is that the court may in the future decide the draw a line in their interpretation and application of the consent requirements in the HFE Act 2008 such that a parental order be refused when the intended parents engaged with an anonymous surrogate.

Concluding thoughts

The cases, having been heard in a relatively close period of time, seem clear in their caution. The first case to highlight these concerns was Re Z, reported in February 2025 –the intended parents in the subsequent cases had therefore commenced on the surrogacy arrangement before this judicial caution had been given. Resultantly, it may be that the judiciary will be less sympathetic to intended parents who embark on anonymous surrogacy arrangements after the publication of these cases. Nonetheless, the challenge will – as always – be the impact of denying a parental order on the child’s welfare. If the judicial warnings are to be taken seriously, there may well be an instance where a parental order is refused: what is not clear is how the child’s legal parenthood would then be resolved in a satisfactory manner.