International surrogacy: key issues to be considered by intended parents before entering into a surrogacy arrangement

Posted: 18/11/2024

In a recent judgment in the High Court, intended parents who conceived a child through international surrogacy were criticised by Mrs Justice Theis for taking ‘risks to pursue their own wish to have a child rather than confront the harsh reality of what they were doing and the consequences of those actions if anything did not go according to their plan’. 

The case

The intended parents, A and B, were born in separate countries overseas (neither of which permits homosexuality), but separately settled in England. They formed a relationship in 2017, and in 2020 started their surrogacy journey. 

They engaged a surrogacy agency and received questionable advice from them throughout. 

• The surrogacy agency was based in country Y (where same sex surrogacy arrangements were not permitted). The agency reassured the intended parents that all procedures would take place in Cyprus, despite the documentation stating otherwise.
• While the agency was engaged by the intended parents as a couple, the agency advised that A should be on the contract as a single man, as opposed to the two of them as a same sex couple.
• The couple were introduced by the agency to a surrogate, X, who lived in country Y. However, the documentation signed by the intended parents stated that embryo transfer would take place in the Turkish Republic of Northern Cyprus, with the pregnancy and birth taking place in an EU country. Despite this, X returned to live in country Y during the pregnancy.
• The couple were keen to seek a passport for the resulting child from A’s country of birth (country C) however, the agency advised them to lie when speaking to the embassy there, and to explain that A and his girlfriend were expecting a baby, with the birth taking place in Northern Cyprus. They were told explicitly not to mention surrogacy. 

As the pregnancy progressed, the intended parents were also told by the agency that due to the ongoing war in country Y, it wasn’t possible for X to give birth there. They were told the birth could happen in Cyprus or country W (for an additional fee), despite same sex surrogacy not being legal in that jurisdiction. They were told by the agency this would be fine, provided A attended the birth alone. The intended parents decided they would follow this advice and agreed for the birth to take place in country W. 

Z was born in country W in January 2023 and A assumed care immediately. At this time, A met X (the surrogate mother) for the first time and was named on his child’s birth certificate alongside her. It became clear during their interactions that X was not aware that A and B were a couple. Following the birth, A travelled to country C with Z, and remained there until appropriate travel documents were obtained for Z to enter the UK in August 2023. 

The surrogate mother was single, and as such under UK law, was recognised as the child’s legal mother at birth and A (the child’s biological father) as her legal father. The intended parents applied for a parental order following Z’s return to the UK, and the case came before Mrs Justice Theis. 

The court judgment

A parental order is a specific application made where a child is born through surrogacy. It is largely governed by section 54 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008), and, provided the criteria in that section are met, and on the basis the court is satisfied that an order meets the child’s welfare needs in accordance with section 1 of the Adoption and Children Act 2002, an order can be made which removes legal parenthood from the surrogate, and reassigns legal parenthood and parental responsibility to the intended parent or parents.  

While the intended parents in this case did not clearly meet all the section 54 criteria, the court was satisfied that the minor shortcomings (such as being outside the time limit set out in the act to apply) were not barriers to a parental order being made. 

However, the final criteria of section 54 of the HFEA 2008 had to be considered further. This states that the surrogate must have been paid no more than reasonable expenses, unless authorised by the court. International surrogacy cases nearly always involve an exercise whereby the court must be asked to authorise expenses paid. In doing so, consideration must be given to whether the intended parents acted in good faith, whether they sought to circumvent child protection procedures, and whether the case is the ‘clearest abuse of public policy’. 

The judge accepted (with some hesitation) that the applicants acted in good faith, before turning to consider the question of public policy. This was particularly relevant given that it is likely that the intended parents lied to circumvent the laws in the country of Z’s birth, and, further, did not give a full account as to the circumstances of Z’s birth to country C. In doing so, she strongly criticised the intended parents, putting to them that ‘they turned a blind eye to what should have been obvious to them and took risks’, and commenting that their decision to enter a surrogacy arrangement in a jurisdiction which does not permit same sex relationships, was ‘inexplicable’. 

Despite this, Mrs Justice Theis accepted that it was not the ‘clearest case’ of public policy abuse (a threshold set by Mr Justice Hedley in a previous case (Re L (a child) (surrogacy: parental order) [2010] EWHC 3146 (Fam)), and that Z’s welfare required that a parental order be made. As such an order was granted, ensuring that both A and B would be recognised as Z’s legal parents. 

Given the difficulties in this case, the judge endorsed an ‘agreed list of key issues any person considering embarking on a surrogacy arrangement (particularly one that involves the surrogate coming from and/or the child being born in a foreign jurisdiction) should consider before they enter in any surrogacy arrangement’. The list, which is non exhaustive, and acts as a guide only, is set out below:

1. What is the relevant legal framework in the country where the surrogacy arrangement is due to take place and where the child is to be born? Put simply, is such an arrangement permitted in that country?
2. When the child is born will the intended parents be recognised as parents in that country, if so how? By operation of law or are the intended parents required to take some positive step and, if so, what steps need to be taken and when (pre or post birth)?
3. What is the surrogate's legal status regarding the child at birth?
4. If the surrogate is married at the time of the embryo transfer and/or the child's birth what is the surrogate's spouse's legal status regarding the child at birth?
5. If an agency is involved, what role do they play in matching the surrogate with the intended parents?
6. What information, preparation or support has the surrogate had about any proposed surrogacy arrangement?
7. Does the surrogate speak and/or read English? If not, what arrangements are in place to enable her to understand any agreement signed?
8. Will the intended parents and the surrogate meet and/or have contact before deciding whether to proceed with a surrogacy arrangement?
9. When will the agreement between the intended parents and surrogate be made, before or after the embryo transfer, and what are the reasons for it being at that time?
10. What arrangements are proposed for contact between the intended parents and the surrogate during the pregnancy and/or after the birth? For example, is it only via the agency or can there be direct contact between the intended parents and the surrogate.
11. Which jurisdiction will the embryo transfer take place and which jurisdiction will the surrogate live in during any pregnancy?
12. Can the jurisdiction where the child is to be born be changed at any stage and, if so, by whom and in what circumstances?
13. What nationality will the child have at birth?
14. Following the birth of the child what steps need to be taken for the child to travel to the United Kingdom, what steps need to be taken to secure any necessary travel documentation for the child and how long does that take?
15. Will the intended parents need to take any separate immigration advice to secure the child's travel to the United Kingdom and what is the child's status once the child has arrived in this jurisdiction.
16. Finally, keeping a clear and chronological account of events and relevant documents is not only important for the purposes of a parental order application but also, importantly, retains key information regarding the child's background and identity.

The case is an example of the importance of obtaining specialist legal advice at the outset of a surrogacy journey – had the intended parents done so, they could avoided the very real risks they had to take during the surrogacy process, and may have reduced the cost and stress of the court proceedings.

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