Ethics and Safeguarding Guidance

Background

The applicants, A and B, are a same-sex couple living in the UK who sought to start a family through an international surrogacy agency,. On the agency’s advice—intended to “avoid complications” because the surrogacy country (Country Y) did not permit same-sex arrangements—A applied as a single man,. The couple paid a “Premium Package” fee of €64,000, which eventually totaled approximately €71,500,.

The surrogate mother, X, traveled to Northern Cyprus for the embryo transfer but lived in Country Y during the pregnancy,. Due to regional conflict, the birth ultimately took place in Country W—another jurisdiction where LGBT surrogacy is not legal. Crucially, the surrogate was not initially informed that A was part of a same-sex couple, and the intended parents had little control over the location of the birth,. Following Z’s birth in January 2023, A and the surrogate were registered as parents; X subsequently signed a power of attorney allowing A to bring Z to the UK.

Contentions of the Parties

The application for a parental order under Section 54 of the Human Fertilisation and Embryology Act 2008 faced several legal hurdles:

• Time Limit: The application was issued in November 2023, slightly beyond the statutory six-month window,.
• Domicile: As neither applicant was born in the UK, the court had to determine if A had established a domicile of choice in England.
• Surrogate Consent: The court scrutinized whether X’s consent was “full and informed,” given she was initially misled about the applicants’ relationship,,.
• Unauthorized Payments: The significant fees paid to the agency and surrogate clearly exceeded “reasonably incurred expenses”,.
• Public Policy: The court considered whether the applicants’ “naïve, risky and irresponsible” behavior in concealing their relationship from foreign authorities constituted an abuse of public policy,,.

The Judge’s Decision

Mrs. Justice Theis granted the parental order, finding that the child’s lifelong welfare outweighed the procedural and policy concerns, . The court allowed the application to proceed despite the delay, retrospectively authorized the payments, and was satisfied that the surrogate’s consent was appropriately established.

Reasoning of the Judgment

The court’s reasoning emphasized the “precarious legal position” created by a lack of due diligence,:

• Paramountcy of Welfare: The judge ruled that Z’s welfare required a parental order to provide “lifelong stability and security” and reflect her lived reality, .
• Domicile and Consent: The court accepted that A had firmly established roots in the UK and intended to reside there indefinitely. Regarding consent, the judge was satisfied that X became aware of the applicants’ relationship shortly after the birth and reaffirmed her consent freely during discussions with a guardian,.
• Public Policy vs. Exploitation: While the judge deprecated the behavior of the applicants and the agency for “turning a blind eye” to obvious risks, she found no evidence of exploitation or the overriding of the surrogate’s free will,,, .
• New Judicial Guidance: To prevent similar “concerning” arrangements, the court produced a detailed 16-point checklist of issues intended parents must consider before entering foreign agreements, including the legal framework of the birth jurisdiction and the necessity of expert legal advice,,.

Conclusion

Re Z (Foreign Surrogacy) serves as a vital precedent for modern international surrogacy. It confirms that while the court will prioritize a child’s welfare to avoid a “legal vacuum,” it will also strictly scrutinize the ethics and legality of cross-border arrangements,. The judgment sends a “loud and clear” message: intended parents must ensure total transparency and seek specialist legal counsel before embarking on a journey that could otherwise place their child at risk of harm.