Lessons in Surrogacy: Z (Foreign Surrogacy) [2024] EWFC 304

Mrs Justice Theis handed down her judgment at the end of last month in this recent case involving an application for a parental order in relation to a child born through a surrogacy arrangement. Z had been born in a jurisdiction where surrogacy arrangements that involved same sex relationships are not permitted. This, amongst other things, led to a series of complications for the applicants and Z.

In Mrs Justice Theis’ own words, this case “provides an important cautionary reminder of the need for those embarking on surrogacy arrangements, particularly those that cross a number of different jurisdictions, to carefully consider, in advance, the arrangements, consequences and implications of that arrangement”. The Court has now ratified an agreed list of key issues for any person considering embarking on a surrogacy arrangement and things they should consider before doing so.

What is surrogacy and why might intended parents look to international surrogacy?

Surrogacy is when a woman carries and gives birth to a child for someone else. Under English law, the surrogate will always be the child’s legal mother at the time of birth (even if the surrogate is not biologically related to the child) and if the surrogate is married or in a civil partnership at the time of conception, then her spouse or partner will be the other legal parent (although there are exceptions). The intended parent(s) must therefore apply for a parental order after the child is born in order to be recognised as the child’s legal parents. The court must be satisfied that the surrogate has freely, and with full understanding of what is involved, agreed to the making of the parental order. 

There are many reasons why families may want to explore surrogacy overseas, including better access to professional services for finding a surrogate and more legal certainty. 

Amongst the list now ratified by the Court, where intended parent(s) living in England/Wales are looking to undertake surrogacy in another country, they will need to think about:

• is surrogacy legal in that country? If so, who can enter into surrogacy arrangements there, and what conditions need to be fulfilled? 
• are surrogacy arrangements enforceable in that country? What are the legal implications of entering into an agreement in that country?
• who will be the legal parents of a child born through surrogacy at birth? 
• what are the costs involved in surrogacy in that country? 
• what nationality will the child have at birth? 
• what travel documents will be needed to return to the United Kingdom? 

Legal issues surrounding international surrogacy

Where intended parent(s) living in England/Wales undertake surrogacy in another country, they may be subject to two sets of laws which they must comply with: the laws on surrogacy in England and Wales, and those in the country in which the surrogacy takes place. 

Creating a family via non-traditional methods can cause a range of complex legal issues. It's essential to take specialist legal advice at an early stage in that journey, so that fully informed choices can be made. As per Mrs Justice Theis’ judgment, “the need to take expert legal advice before entering into these arrangements cannot be emphasised strongly enough”. Our family team has extensive experience helping parents who are building their families through surrogacy in the UK, or overseas. Our legal experts can support you through the process, providing you with specialist legal advice. We'll work with you to explore your options and give you the peace of mind to focus on enjoying precious family moments.