'Enormous concern' expressed by judge in commercial 'cross jurisdiction' surrogacy case

A UK judge has granted a parental order to a 'naïve' father in a commercial foreign surrogacy case.

The applicant, referred to as X, was a single British man seeking to have a child through surrogacy. He entered an arrangement with an agency registered in Israel, which arranged treatment through a clinic in Northern Cyprus. The surrogate, W, travelled to the clinic for transfer of the embryo, created using X's sperm and a donor egg. She then returned to her home country, Kyrgyzstan, for the duration of the pregnancy. The baby, Z, was born in Moldova. X applied for a parental order upon returning to the UK with Z, which the court granted.

'What took place in this surrogacy arrangement, with the seemingly reckless disregard of the cross jurisdiction implications of the arrangement, overseen by two essentially commercial organisations, causes the court enormous concern,' Mrs Justice Theis said in her judgment. 'In terms of X's actions, I regard then as naïve. With the benefit of hindsight X acknowledges that assessment. However, having considered the evidence as a whole I do not consider he acted other than in good faith.'

The parties previously agreed that Z's birth would take place in the Czech Republic, but the agency changed this to Moldova, where surrogacy is unregulated and may be considered illegal. X travelled to Moldova for the birth, and was only just able to return to the UK with Z before his three-month visa expired. Recently, another High Court judge warned of the dangers of complex foreign surrogacy arrangements, particularly in jurisdictions where surrogacy is illegal (see BioNews 1278). This case also involved a clinic based in Northern Cyrus which used foreign surrogates.

X applied to the court for a parental order to become Z's legal father. The court concluded that X clearly met many of the criteria outlined in s54 of the Human Fertilisation and Embryology Act 2008: he was over 18 years old, currently living in the UK, the biological father of Z, and Z was currently living with him. The court was also satisfied that the surrogate had given consent, despite some issues notarising the paperwork in Kyrgyzstan.

The main issue for the court was whether any payments were made beyond reasonable expenses, and whether the court could approve these payments to enable the order to be granted. The court heard that X paid the agency a total of €31,143 for the arrangement, and a further €6,000 for the birth to take place in Moldova. X made no direct payments to the surrogate, who received around €15,000 from the agency.

'The court only has very limited information regarding the purpose of the payments made to the surrogate and whether they related only to expenses reasonably incurred,' said Mrs Justice Theis. 'Despite the real reservations I have set out above regarding this surrogacy arrangement, I have reached the conclusion... that any payments made that were other than expenses reasonably incurred should be authorised by the court.'

Mrs Justice Theis approved the payments and granted the parental order.

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The past, present and future of surrogacy law will be discussed at the free-to-attend online event 40 Years of the Surrogacy Arrangements Act: What Next for Surrogacy?, taking place on Wednesday 16 July 2025.

Find out more and register here.