When international surrogacy goes wrong

Surrogacy is one of those topics which always attracts a great deal of attention, especially when things have gone terribly wrong.

The details of one such case, recently published in the Telegraph, makes for heartbreaking reading. In this story, a surrogate from the USA, Carole-Anne Kelly (not her real name), says that she was misled about the identity, the circumstances and location of the intended parents, and even who the biological parents were. She says that it was only after the child had been taken to live in England with people she had never met that she realised what had happened.

I was appalled to read about the allegations in this international surrogacy arrangement where Kelly was left feeling 'deceived and utterly betrayed'. No one would seek to justify the alleged actions of the people who were involved, and I certainly won't be doing so.

Just as every child is different, the same is true of every surrogacy arrangement. An example of one catastrophically terrible surrogacy arrangement is not evidence that the whole surrogacy world is full of corruption and exploitation. I would argue that for the sake of everyone involved in surrogacy, most importantly children who have been and will be born to surrogates, a measured and sensitive approach is required when discussing and exploring surrogacy, its benefits and potential risks.

International surrogacy involves a huge emotional, psychological and financial commitment from intended parents. The USA is a popular destination for British intended parents hoping to have a child through surrogacy, and there are numerous highly regarded surrogacy agencies operating in various states. A reputable agency will invest a great deal of time in working with potential surrogates to be absolutely sure that this is the right thing for them, and their well-being is of the utmost importance.

It's widely agreed that in the UK, our surrogacy laws are in need of reform, having been in place since the 1980s. With this in mind, the Law Commissions of England and Wales and Scotland published a joint report, with extensive recommendations as to how the law could be changed to improve the legal position for everyone involved (see BioNews 1285a, 1285b, 1187 and 1203). However, the Government has confirmed that it won't be taking the recommendations forward at this time, so there is no promise of change any time soon (see BioNews 1289).

Although, as lawyers, we may be frustrated with our outdated existing laws, we do have a framework in the Human Fertilisation and Embryology Act 2008, which includes requirements which aim to safeguard those involved in surrogacy. With international surrogacy, when parents return to the UK with their child, they must apply to the Family Division of the High Court to transfer legal parentage from the surrogate (and her spouse, if relevant) to themselves.

This is not just a 'box-ticking' exercise. Our specialist, highly experienced High Court judges scrutinise these applications and will probe the circumstances of each case to ensure that parents have complied with the legal requirements. The judge will need to be satisfied that the surrogate has given her consent to the parental order fully and freely, and she understands the legal implications. The judge will also scrutinise payments which have been made to the surrogate, and will need to approve the payments before the parental order can be granted.

There will, of course, be cases when things go terribly wrong – where unscrupulous agencies, driven purely by profit, take advantage of vulnerable women and intended parents. One of the points about Kelly's case which particularly struck me was the lack of transparency and the secrecy with which the alleged perpetrators conducted themselves, whereby Kelly was deceived about the identity and location of the intended parents.

This shocking conduct is the polar opposite of how any decent agency conducts itself. Being a surrogate is a profound physical and emotional commitment, which is why reputable agencies take pains to make sure that the match is right for the surrogate and the intended parents. Everyone needs to be fully informed and on board before anything happens.

International surrogacy arrangements vary hugely, depending on where in the world the surrogacy is happening. Surrogacy in some jurisdictions is much less predictable than in others, and in some places, it's dangerous or illegal. Some recent cases have brought the risks into sharp focus. For example, in the case of B and C v D and H [2025], the parents embarked on surrogacy in Nigeria (see BioNews 1314). They never met the surrogate, and didn't know her identity beyond her initials.

As well as the ethical concerns that this sort of arrangement clearly raises, the parents were left in a highly precarious legal position, unable to return to the UK with their child and facing lengthy delays in securing their parental order. The judge cautioned intended parents that this sort of behaviour is ill-advised, and that parents: 'should avoid embarking on a surrogacy arrangement where they do not meet, have any knowledge of or means of contacting the surrogate who carries their much-wanted child'.

Cases like this remind anyone contemplating international surrogacy to be highly cautious in their planning, especially when choosing where in the world the surrogacy will take place. Just because a country may seem cheaper, the price they end up paying may be far higher.

Kelly's devastating tale seems to be an outlier, but it should serve as a cautionary tale to anyone planning to embark on a surrogacy journey; to do their research, engage a reputable agency that they are confident will treat everyone involved with the utmost care, respect and dignity. On top of this, a clear understanding of the legal framework is essential, so getting sound legal advice at the outset is so important. I have seen how a well-managed surrogacy arrangement can be an overwhelmingly positive experience for everyone involved, a far cry from Kelly's awful experience, which she should never have been put through.