The importance of evidence of valid consent in Parental Order proceedings and the perils of surrogacy in Northern Cyprus (yet again)

In April 2025, Mrs Justice Theis was yet again presented with a problematic case of international surrogacy involving a clinic in Northern Cyprus. In Mr W v Ms S and G [2025] EWFC 85  https://www.bailii.org/ew/cases/EWFC/HCJ/2025/85.html the Court considered evidential and procedural problems with the consent given by the surrogate and potential safeguarding issues that might have impacted the welfare determination of the application.

Issues

The application for a parental order was made by Mr W as the biological father and sole‑applicant in respect of a child G, aged 21 months. G was born following a gestational surrogacy arrangement in Northern Cyprus via Cyprus Family Dream IVF, with Ms S as the surrogate. The determination of the proceedings was delayed for 15 months due to the lack of valid post‑six‑weeks consent from Ms S and an outstanding police investigation into Mr W. The judgment flags wider cautions from the Re Z authorities regarding foreign commercial surrogacy and the potential refusal of orders. The judge directed that this judgment be sent to the Government Departments who participated in Re Z.

Background and Procedure

Mr W, aged 37, entered the Clinic agreement in August 2022, deposited gametes, and an anonymous donor produced two embryos; the Clinic selected the surrogate. The Clinic contract barred direct surrogate contact, guaranteed a baby within 2.5 years, and set staged payments totalling 75,000 EURO. Embryo transfer occurred on 10/10/2022; Ms S returned to Kyrgyzstan and later travelled back to Northern Cyprus for delivery. G was born in Northern Cyprus, discharged to Mr W's care, and they remained there for four months awaiting travel documents before returning to the UK in November 2023. Mr W applied for a parental order in November 2023; G was joined as a party in January 2024 and a child arrangements order gave Mr W parental responsibility pending the outcome of the parental order application.

Safeguarding and Police Matters

Police/Cafcass checks disclosed allegations including harassment, battery, and three alleged rapes of Mr W's former wife; all concluded with no further action. A local authority assessment in March 2024 closed the case with no further action and found no safeguarding risk to G. However, the court criticised Mr W's failure to inform the Clinic or Ms S about his September 2022 arrest before the embryo transfer in October 2022, calling his view naïve and a cause of delay.

Consent Evidence

A notarised consent form A101A signed by Ms S five days post‑birth was invalid under s54A(6) because it was within the statutory postpartum 6 week period, but it did form part of the wider evidential picture on the issue of consent. Further evidence of consent included the fact that Ms S signed consent for a British passport to be issued for G in July 2023, stating no parental responsibility and giving up custody. Ms S also signed a translated, notarised C52 acknowledgment to the parental order proceedings in January 2024, ticking consent to a parental order. On 18/02/2025 Ms S WhatsApped the Guardian confirming consent, G's date of birth, and referred to Mr W by name. On 24/03/2025 a video meeting with a Russian interpreter confirmed Ms S's informed, ongoing consent; she understood the order's effect. Ms S said she did not recall the Clinic's letters or an August 2024 meeting about investigations, but consented knowing no prosecution followed. The court found the Clinic and its lawyer, Mr Kizilduman, unhelpful, unreliable, and their evidence not credible or relied upon.

Statutory Criteria under HFEA 2008 s54A

The court held s54A(1)–(4) were satisfied: Mr W's gametes were used; it was a timely application; G's home was with Mr W; Mr W is domiciled here and over 18. Payments totalled 75,000 EUR to the Clinic, with evidence Ms S received 14,000 USD plus other itemised sums, exceeding expenses‑only limits. The court, with hesitation, authorised non‑expenses payments given the arms‑length consensual arrangement and Mr W's good faith despite his naïveté. On the totality of the evidence, the court was satisfied that Ms S freely, unconditionally, and with full understanding consented to the order in accordance with s54A(5).

Welfare Assessment and Outcome

Cafcass and local authority enquiries found G well settled with Mr W and his partner Ms B, who were assessed as confident and capable carers. Mr W's mental health history, including OCD and autism spectrum context, was managed; no risk indicators to G were identified. The Guardian supported the order; safeguarding concerns were resolved; G benefited from a close extended family and stable placement. The court concluded a parental order meets G's lifelong welfare needs, recognising the reality and providing security and stability. A parental order was made in favour of Mr W.