Although ultimately granting a Parental Order, the High Court warned would-be parents against embarking on a surrogacy arrangement in those instances where they do not meet or have any knowledge of the surrogate, as it may lead to complications and lengthy legal delays.
Facts:
B, age 41 years, and C, age 36 years, were both born in Nigeria. C acquired British nationality in 2003. B originally came to the UK in 2012 to study, and the couple were married in 2014, purchasing their family home in 2017. B later acquired British nationality in 2019.
After C’s previous losses of pregnancy and failed in vitro fertilisation (IVF) treatments, they decided to proceed using donor eggs and B’s gametes. In April 2023, they entered into an agreement with a surrogate known only by her initials, G.D. (or GH1), whom they had never met and from whom they had received no personal information, relying entirely upon their native clinic for all contact. In July 2023, a first embryo transfer took place with GD, which was initially reported to have been unsuccessful.
B and C briefly agreed to the use of a second surrogate (GH2) in August 2023. However, subsequent testing indicated that the first surrogate (GH1) was, in fact, pregnant, culminating in the birth of their daughter, H, in March 2024. H has remained in the continuous care of B and C since her birth in Nigeria and her arrival in the UK in June 2024, and was granted a certificate of Right of Abode on 14 May 2024.
The core factual issue in this case was the anonymity of the surrogate, which caused considerable legal delay (over 15 months) and immigration complications for H. The intended parents were unable to secure a British passport for H, and the Home Office subsequently revoked H’s Certificate of Entitlement to the Right of Abode. Attempts by B and C and their solicitors to contact the surrogate for her statutory consent were blocked by the clinic, which asserted that the surrogate wished to remain anonymous, having signed a contract affording complete anonymity, and had threatened legal action against the clinic should her identity be revealed. The Court had to determine whether the surrogate “could not be found” to dispense with the necessary consent.
Decision:
Mrs. Justice Theis DBE made a Parental Order in favour of the applicants (B and C) in relation to H. The Court’s reasoning for granting the Parental Order focused on satisfying the mandatory criteria of Section 54 of the Human Fertilisation and Embryology Act (HFEA) 2008, particularly in relation to the exception allowing the Court to proceed without the surrogate’s consent.
Since the surrogate was anonymous, the Court had to be satisfied that she “cannot be found” under Section 54(7). The Court carefully scrutinised the efforts made by the intended parents to locate the surrogate, noting the considerable steps they had taken along with their solicitors to contact her through the Nigerian clinic. The Court accepted the evidence that the clinic had actively prevented contact, stating that the surrogate wished to remain anonymous and had threatened legal action should her identity be revealed. Mrs. Justice Theis explicitly stated that parents “should avoid embarking on a surrogacy arrangement” where they do not meet, have any knowledge of, or else have any means of contacting the surrogate.
Applying the paramount consideration of the child’s welfare (s.1 Adoption and Children Act (ACA) 2002), the Court found that granting the Parental Order would meet H’s lifelong welfare needs. It provides a secure, lifelong legal relationship with both B and C, aligning with the reality of the established family life.
Implications:
This case acts as a stark warning to intended parents considering anonymous international surrogacy that it could result in unnecessary delays. The Court explicitly echoed the President of the Family Division’s warning that intended parents “should avoid embarking on a surrogacy arrangement where they do not meet, have any knowledge of or means of contacting the surrogate.”
While it is currently possible for the courts to continue to grant parental responsibility where the surrogate cannot be found, the Judge noted that courts may, in the future, refuse to grant clemency in such cases if the evidence shows that the prospective parents proceeded with anonymous arrangements, cognizant of such risks.
The case highlights the severe problems posed by foreign clinics and agencies that actively obstruct the legal process by refusing to provide contact details or confirm consent by stating the surrogate has threatened to sue.
