INTERNATIONAL SURROGACY CASE LAW (Article)

The applicants, a husband and wife, turned to international surrogacy in Russia after a long and arduous 16-year journey to become parents, which included 15 unsuccessful IVF cycles,. Their son, C, was born in 2012 following an agreement with a Russian agency, using the husband’s sperm and a donor egg,. The couple paid the agency €50,000, a portion of which was for the surrogate’s expenses and compensation,. After C’s birth, the parents initially applied for a British passport without disclosing the surrogacy, fearing they would be unable to bring the child home; however, upon receiving updated legal advice, they made full disclosures to the authorities and returned to the UK to seek a parental order.

The commissioning parents, A and B, entered into a surrogacy arrangement in India using B’s sperm and a donor egg,. Twins, C and D, were born in December 2011 and brought to the UK in 2012,. The parents separated shortly after their return but remained living in the same home until 2014,. They were entirely unaware of the requirement to apply for a parental order, believing the Indian birth certificates—which named them as parents—were sufficient to secure their status in the UK,. It was only after seeking legal advice following their separation and the 2014 decision in Re X (A Child) that they realized an application was necessary. By the time they applied in November 2014, they were 17 months past the statutory six-month deadline, and the father was living in a separate home.

The applicants, a male same-sex couple (A and B) living in the UK, sought to start a family through a Cypriot surrogacy agency. Although the agency was based in Cyprus, the surrogacy involved an embryo transfer in Northern Cyprus using a surrogate (X) from “Country Y,” a jurisdiction that does not permit same-sex surrogacy. Following the agency’s advice to “avoid complications,” applicant A applied as a single man, and the couple was encouraged to conceal their relationship from both the surrogate and foreign authorities. The child, Z, was ultimately born in “Country W” in January 2023, where A and the surrogate were registered as parents.

The commissioning parents, a married couple domiciled in the United Kingdom, entered into a surrogacy arrangement in India. The child, X, was born in December 2011 using the father’s sperm and a donor egg. Due to the parents’ lack of awareness regarding the specific legal requirements of the Human Fertilisation and Embryology Act 2008 (HFEA 2008), they did not apply for a parental order until February 2014—well beyond the six-month limit set by Section 54(3) of the Act. Under both Indian and English law, the surrogate parents were initially considered the legal parents, leaving the commissioning parents with no legal rights or responsibility for X despite their biological and daily relationship.

The applicants, X and Y, were a same-sex couple who sought fertility treatment at St Bartholomew’s Hospital (the clinic). X gave birth to their first child, C1, in 2010. Both parents intended for Y to be a legal parent and believed they had signed all necessary HFEA consent forms. Years later, the clinic notified them that no signed Form PP (the partner’s consent to be a parent) could be found in their records.
On the advice of the clinic and their previous solicitors, who believed it was the only remedy, Y formally adopted C1 in 2014 to secure her legal status. However, following subsequent legal developments (specifically Re Case A), the parents realized they might have been legal parents all along and sought to revoke the adoption order while obtaining a formal declaration of parentage.

The case involved a same-sex couple, X and Y, who underwent IVF treatment at a licensed clinic. Y, the gestational mother, gave birth to twins conceived using X’s biological eggs. Under the Human Fertilisation and Embryology Act (HFEA) 2008, for X to be recognized as a legal parent, specific forms must be signed: the gestational mother must sign Form WP (consenting to her partner being a parent), and the partner must sign Form PP (consenting to be a parent).
Due to administrative errors by the clinic, the partners accidentally swapped roles: Y signed Form PP and X signed Form WP. Additionally, Y was in a civil partnership with another woman (CP), though they were separated. Under Section 42 of the HFEA 2008, a civil partner is presumed to be the legal parent unless it is shown they did not consent to the treatment.

The case involved eight separate applications (Cases P through X) heard together due to their similar legal issues regarding assisted reproduction provided by clinics regulated by the Human Fertilisation and Embryology Authority (HFEA). Six women and two men sought declarations under Section 55A of the Family Law Act 1986 that they were the legal parents of children born following licensed treatment.

The applications were necessitated by a variety of administrative failures involving mandatory HFEA consent forms (Forms WP and PP). These errors included:
Missing or incomplete forms: Missing dates, unticked consent boxes, or entire forms being absent (Cases P, Q, S, T, U, W, and X).
Incorrect documentation: Using the wrong pages for a form or signing the incorrect section of an internal clinic consent form (Form IC) (Cases S, T).
Dating errors: Incorrectly dating signatures (Case R).

The litigation arose following an audit by the Human Fertilisation and Embryology Authority (HFEA), which revealed that 46% of licensed clinics had discovered “anomalies” in their records regarding parental consent. Under Sections 37 and 44 of the HFEA 2008, legal parenthood for a non-biological partner is contingent upon both the mother and the partner providing written notice of consent before treatment begins. In the seven cases addressed (A–F and H), children were born following successful treatment, but the required HFEA consent forms (Form WP and Form PP) were either missing, mislaid, or contained errors.

The applicants, Mr and Mrs K, were both 72 years old and retired at the time of their application. Following the tragic death of their only son from cancer in 2020, they decided to embark on a surrogacy journey in California. A child, B, was born in January 2024 using Mr K’s sperm and a donor egg.

While the applicants had obtained a Californian pre-birth order naming them as legal parents, under United Kingdom law, the gestational surrogate (Mrs Z) and her husband remained the legal parents. The applicants returned to the UK with B in March 2024 and applied for a parental order to secure their lifelong legal relationship with him.

The claimant, TT (Freddy McConnell), was registered as female at birth but transitioned to live in the male gender,. In 2017, he received a Gender Recognition Certificate (GRC) confirming his legal gender as male. Shortly thereafter, TT underwent intrauterine insemination (IUI) at a fertility clinic, became pregnant, and gave birth to a son, YY, in 2018.

When TT attempted to register the birth, the Registrar General informed him that because he had given birth to the child, he was required by law to be registered as the “mother”,. TT brought a claim for judicial review, seeking to be registered as “father” or “parent”.