The perils of choosing a surrogate from Facebook

This case highlights what can go wrong when intended parents and a surrogate meet on Facebook and enter into a surrogacy arrangement. Re J (A child) (Surrogacy: Adoption Order), [2025] EWHC 2960 (Fam) https://caselaw.nationalarchives.gov.uk/ewhc/fam/2025/2960 is the latest in a line of cases where the High Court takes the opportunity to point out the risks involved and how desperation can lead to deception. I represented the Local Authority. 

The case involves an application for an adoption order concerning a child referred to as J, who is 2 1/2 years old. The applicants, Mr and Mrs P, sought to adopt J after initially applying for a Parental Order. The case was heard in the High Court of Justice Family Division, with Ms Justice Henke presiding.

Background and Surrogacy Agreement

Mr and Mrs P met in 2015, began cohabiting in 2017, and married in 2019. They entered into a surrogacy agreement with Ms T in June 2021, agreeing to pay her £16,000 for pregnancy expenses. The agreement included a clause that Ms T would abstain from sexual intercourse until pregnancy was confirmed.

Conception and DNA Testing

Attempts to conceive through home insemination using Mr P's sperm were initially unsuccessful. Meanwhile, for a short period of time, the intended parents and the surrogate explored using a fertility clinic but were dishonest in their dealings with the clinic by presenting as a known donor to a single woman rather than a surrogate/intended parent.  Ms T became pregnant in June 2022 following a further home insemination attempt, but doubts about J's paternity arose during a 4D scan in December 2022. A DNA test from NorthGene, not approved for legal purposes, initially indicated Mr P was J's biological father, but this was later disproven by a court-approved test from AlphaBiolabs. The reason why the tests were inconsistent is because the sample sent to NorthGene supposedly from the child, in fact came from Mr P's mother.

Legal Proceedings and Findings

The court found that Mr and Mrs P knowingly submitted an edited DNA report to mislead the court and that the paternal grandmother was also involved in this deception by providing her own sample for DNA testing rather than one from the child. Ms T was found to have had unprotected sexual intercourse with another man around the time of conception, which she did not disclose. The court determined that Mr P was not J's biological father and declared non-parentage.

Adoption Order

Despite the deceit, the court concluded that it was in J's best interests to be adopted by Mr and Mrs P, as they had been J's psychological parents since birth. The adoption order was granted to provide J with stability and permanency.

Court's Findings

The judgment highlighted the risks of informal surrogacy arrangements and the misuse of non-court approved home DNA tests. The court emphasised the importance of honesty in legal proceedings and the potential consequences of deceit. Unfortunately, despite the best efforts of all the professionals involved, Ms T refused to provide any information that would enable J's biological father to be identified.

Conclusion

The judgment serves as a cautionary tale about the complexities and potential pitfalls of surrogacy and the legal implications of dishonesty. The court allowed time for the parties to consider the publication of the judgment and potential notification to the HFEA regarding the deception of the fertility clinic.