The public policy conundrum in complex surrogacy cases

Since s54 of the Human Fertilisation and Embryology Act 2008 came into force, the English courts have interpreted a number of the mandatory factors in ways that allow parental orders to be made in surrogacy cases, when strict interpretation of the statute would not have permitted it. The courts are tasked with striking the balance between the integrity of the statute's wording, and the intention behind it. Simultaneously, the courts have the pressure of child welfare and achieving the 'right' outcome to meet the needs of those involved. Anyone familiar with this legislation will appreciate the difficulty of reconciling its strict wording with these pressures. Arguably, the courts have 'chipped away' at the s54 checklist in doing so.

The courts have often grappled with the policy and rationale that underpinned the 2008 Act and its predecessor(s) when applying its creative interpretation. However, until recently, the courts have not been forced to do so as extensively with the question of wider public policy and whether this will, or should, prevent the making of a parental order.

Several recent cases, including X v W & Anor [2025] EWFC 25 and Re Z (Foreign Surrogacy) 2024 EWFC 304, have caused the courts to grapple with the careful balance of the interests of the individual subject child, and the wider public interest in ensuring ethical practice is maintained (see BioNews 1279). Both cases involved actual or potential illegality during the course of international surrogacy journeys. It is clear from both that anyone contemplating international surrogacy must be vigilant for any cause for concern. The court makes clear that it expects intended parents to take responsibility for their own due diligence; and they should be under no illusions that it can refuse to make an order if there is belief they have not acted in good faith.

In the recent cases, the court was satisfied that while there were aspects of naïvety and as per Re Z 'an abdication of the most basic responsibility of intended parents', there was nothing to suggest they had deliberately engaged in illegal or unethical practice. That clearly weighed heavily in the court's decisions to grant the orders. However, as more of these judgments – and robust warnings – are released, for how long will intended parents be able to say they were taken by surprise? Presumably, the court will be forced to take the view at some point that a line has been crossed between wilful blindness or naïvety, and outright disregard for the law or ethical practice. It is accepted that most intended parents will not be scrutinising BAIILI (the British and Irish Legal Information Institute) as part of their surrogacy journey. However, the more warnings there are, the quicker the court's patience may expire.

In X v W, the father's case was that he 'placed a lot of trust in the clinic and agency' and was 'impressed with the apparent professionalism of staff', and he entered into the agreement with an expectation of where each aspect of the arrangement would take place. That later changed without warning or his agreement and included a threat that the agency would withdraw all support if he did not accept the revised arrangements. The result was concern that the arrangement was against the law in the surrogate's home state, and the country in which the birth eventually took place. The court had to decide whether such illegality should prevent the making of the parental order. The father accepted he had been 'naïve' to red flags but was clear he had done his best to navigate a 'fait accompli' when it came to illegality. There was also conflicting evidence on what payments the surrogate had received as against her entitlement in the contract but again, the court was satisfied of the father’s conduct and transparency on that issue.

The recent cases, and particularly X v W, suggest that whatever shortcomings there may have been on the part of the intended parents, there is genuine cause for concern about the behaviour of the professional agencies involved. In X v W, Mrs Justice Theis named the agencies involved: Dogus IVF Centre and Fullsuccess Medical Consulting Limited. In respect of both, she stated that from what she had seen, they 'acted in a way which was far from transparent' and that the arrangement, 'overseen by two essentially commercial organisations causes the court enormous concern'. The intended father's position was that he had met the clinic at a well-established exhibition in this country which, to his mind, added an air of legitimacy and authority. The clear message now for anyone considering international surrogacy is this: rigorous research and questioning of the clinics and agencies involved is a 'must', especially if seeking subsequent parental orders whilst on safe ground.

Of course, public policy is not the same as public opinion. The recent decisions have led to staunchly anti-surrogacy commentary and reporting. Much public discourse originates from the belief that surrogacy in any form is inherently exploitative and should be banned outright. This rising tide has polarised a now fierce debate. Discussion then departs from how surrogacy can happen as safely as possible and remains, reductively, whether it should be simply outlawed (see BioNews 1275).

The reality is that banning surrogacy will not stop it. It is more likely to lead to an underground market more open to blatant exploitation. Importantly, the risk of exploitation applies not just to surrogates but also to intended parents who are often desperate for a family and perhaps marked as easy prey for overtly commercial or unethical organisations. It can be seen how some intended parents will be tempted to, as in the words of Mrs Justice Theis in Re Z, 'take risks to pursue their own wish to have a child rather than confront the harsh reality of what they were doing and the consequences of those actions'. The warnings from these cases suggest the court will scrutinise that line very carefully.

In England and Wales surrogacy reform remains so near and yet so far. Any changes are still unlikely to quell the demand for international surrogacy. International regulation remains distant. For now, the message for those advising intended parents navigating international surrogacy journeys, is that lack of preparation or wilful blindness will not necessarily be sufficient to satisfy the court. Intended parents need to be actively alert to anything that does not seem right and be able to show they were not a willing participant within it.

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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.