What happens if a surrogate is anonymous and cannot be traced?
Anonymous surrogacy is a problem that has come before the Courts in a number of cases most recently on 6 February 2025 in the case of Re H (Anonymous Surrogacy) [2025] EWHC 220 (fam) https://www.bailii.org/ew/cases/EWHC/Fam/2025/220 heard by the President of the Family Division, Sir Andrew McFarlane. One of concerns that arises when a surrogate cannot be found is whether the child is the victim of human trafficking or the mother is a victim of sexual exploitation. The clinic involved in this case has been identified as a service provider that should be approached by intended parents with caution.
Key Facts
The case concerns an application for a parental order under the Human Fertilisation and Embryology Act 2008 (HFEA 2008), s 54, for a baby girl, 'A', born via surrogacy in Nigeria in early 2023. The applicants, Mr and Mrs H, are of Nigerian descent. Mrs H is a British citizen, and Mr H is a Nigerian national with leave to remain in the UK. They have been married for 8 years. DNA testing confirmed that Mr H is A's biological father, while the surrogate mother is presumed to be A's biological mother. The surrogate mother remained anonymous throughout the process, and her identity is unknown to the applicants.
Legal Context
The court must ensure compliance with the requirements of HFEA 2008, s 54, which include:
The child must have been carried by a woman who is not one of the applicants .
At least one applicant's gametes must have been used to create the embryo .
The applicants must be married, civil partners, or in an enduring family relationship .
The application must be made within six months of the child's birth .
The child must reside with the applicants, and at least one applicant must be domiciled in the UK .
Both applicants must be over 18 years old .
The surrogate mother must agree unconditionally to the order unless she cannot be found or is incapable of giving consent .
No money or benefit, other than reasonable expenses, should have been exchanged unless authorised by the court .
Challenges in the Case
The surrogate mother's anonymity posed significant challenges in meeting the legal requirements under HFEA 2008, s 54(6), which requires her unconditional consent to the parental order. The court had to rely on HFEA 2008, s 54(7), which allows the order to proceed without the surrogate's consent if she cannot be found or is incapable of giving consent . The applicants provided various documents, including a surrogacy agreement, identity documents, and payment records, but the documentation was incomplete and lacked clarity. The Parental Order Reporter, Ms Jane Houldsworth, initially did not recommend granting the order due to insufficient evidence but later supported the application after further documentation was provided .
Court's Decision
The court determined that Mr and Mrs H had entered into a surrogacy arrangement with the Lifelink Fertility Clinic in Nigeria and that Mr H is A's genetic father. The court found that the surrogate mother, identified only as 'O.S.', could not be found, satisfying the requirements of HFEA 2008, s 54(7) . The court concluded that all statutory criteria under HFEA 2008, s 54, were met, and that granting a parental order was in the best interests of A . A parental order was issued in favour of Mr and Mrs H, legally recognizing them as A's parents .
Key Observations
The court emphasised the importance of scrutinising parental order applications, especially those involving foreign surrogacy arrangements, due to potential issues such as unreliable documentation and risks of child trafficking . The anonymity of the surrogate mother was noted as a significant challenge and a potential source of suspicion regarding the arrangement. Future applicants were advised to avoid anonymous surrogacy arrangements to prevent similar difficulties .
Conclusion
The court granted a parental order to Mr and Mrs H, ensuring that they are legally recognised as A's parents. The decision was made in light of the statutory requirements being met and the best interests of the child, despite challenges related to the surrogate's anonymity and incomplete documentation.Postscript:
A few weeks after Re H, another case that raised the same issue of an anonymous surrogate came before Mrs Justice Theis on 26 March 2025. Re X (Foreign Surrogacy) [2025] EWFC 71 https://www.bailii.org/ew/cases/EWFC/HCJ/2025/71.html was an application for a Parental Order in respect of twin girls (AB and CD) born via surrogacy in Nigeria.
Background:
The twin girls were born in Nigeria in January 2024 through a surrogacy arrangement between Mr and Mrs X and Ms Z, the gestational surrogate. The embryos were created using donor eggs and Mr X's sperm, and the surrogate mother carried the pregnancy. Mr and Mrs X are Nigerian-born but have been residing in the UK since 2005 and 2008, respectively. They are married, have a family home in the UK, and Mr X is a British citizen. The surrogacy arrangement was facilitated by Kingswill Specialist Hospital in Lagos, Nigeria. Payments were made to the hospital and the surrogate, Ms Z. The applicants faced challenges due to the anonymity of the surrogate, which caused delays in the application process.
Legal Framework:
As in Re H above, the application for a parental order was made under Section 54 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008), so the Court had to scrutinise the evidence to be satisfied that the criteria for granting parental orders was met. The anonymity of the surrogate presented obvious challenges as in the case in Re H because the intended parents had no direct contact at all with the surrogate and her unconditional consent is required. Additionally, on the facts of this case, the Court also had to consider whether the children had a home with the applicants and that Mr X was domiciled in England and Wales
Court Findings:
The court found that all criteria under s54 HFEA 2008 were satisfied including that Ms Z, the anonymous surrogate, had provided her consent freely, unconditionally and with full understanding, as confirmed by affidavits and oral evidence. Payments made to the hospital and surrogate were deemed reasonable and authorised by the court (s54(8))
Welfare Considerations:
The court considered the lifelong welfare needs of the children, including their right to family life under Article 8 of the European Convention on Human Rights. The parental order reporter, Ms Inman, conducted a welfare analysis and recommended the granting of parental orders. The court concluded that parental orders would provide the children with lifelong security, stability, and legal recognition of their relationship with Mr and Mrs X.
Judgment:
Mrs Justice Theis DBE granted parental orders in favour of Mr and Mrs X for both children, AB and CD, as it was deemed to meet their lifelong welfare needs and secure their legal parental relationship.