Parental order granted for child born to untraceable surrogate

A UK judge has granted a parental order in a case concerning a surrogacy arrangement abroad, where the surrogate could not be traced.

The applicants, referred to as B and C, had entered into a surrogacy arrangement with a fertility clinic in Nigeria, intending to have embryos created using donor eggs and B's sperm. The applicants agreed with the clinic to proceed with embryo transfers to two anonymous surrogates known only as GH1 and GH2, and one of the surrogates gave birth to H. There was some confusion about which surrogate carried the pregnancy, however the court concluded 'on the balance of probabilities' that the child was born to GH1. The intended parents returned to the UK with H and filed a parental order application. The court granted the order in the best interests of the child, without agreement from the surrogate as she could not be found.

'A parental order will meet H's lifelong welfare needs,' Mrs Justice Theis said in her judgment. 'It will recognise her biological relationship with B, and provide for H to have a secure lifelong legal parental relationship with both the applicants which securely recognises the reality of the family life that exists between the applicants and H.'

Under section 54 of the Human Fertilisation and Embryology Act 2008, the surrogate must give consent in order for the parental order to be granted. However, section 54(7) stipulates this is not required if the surrogate 'cannot be found'.

In determining whether s54(7) applied in this case, Mrs Justice Theis followed the approach set out in previous cases, and considered whether reasonable steps had been made to contact the surrogate and whether there was any evidence of prior consent, in addition to the paramount consideration of the child's welfare. She noted that while 'consent is the cornerstone of the statutory framework', the parental order could be granted without surrogate consent in this case.

Mrs Justice Theis concluded 'not without some hesitation' that 'the prospects of tracing [GH1], giving her notice of and securing her engagement in these proceedings are very unlikely with the consequence that she "cannot be found"... and the application can proceed without the need to obtain her agreement.'

The court also noted that these complications led to delays in granting the order, which were 'detrimental to H through the continuing uncertainty, and caused significant distress and anxiety for the applicant intended parents'.

Mrs Justice Theis warned against arrangements involving anonymous surrogates, and reiterated comments made in a previous case by Sir Andrew McFarlane, president of the Family Division: 'Those who follow in their footsteps in the future would be well advised to avoid engaging with an anonymous surrogate.'

UK judges have previously warned of the risks of engaging in complex international surrogacy arrangements, for surrogates, intended parents and children born through surrogacy (see BioNews 1278 and 1279).