The President of the Family Division, Sir Andrew McFarlane has recently warned against unlawful surrogacy arrangements abroad after dealing with a “highly unusual case”.
The case of Re Z (Unlawful Foreign Surrogacy: Adoption) [2025] EWHC 339 (Fam) involved two women in their 60’s, Ms W and Ms X. The women were in a long-term relationship and lived in the UK. They had considered having children for several years. Following many unsuccessful attempts at having children, the women established a connection with a foreign surrogacy clinic, which they believed was in southern Cyprus. The clinic was in fact located in the Turkish Republic of Northern Cyprus, which is not recognised by the UK and therefore meant that neither the surrogacy nor the children being placed with same-sex couples was legal. This created issues as that the Turkish Republic of Northern Cyprus did not recognise the arrangements or the same-sex relationship and did not support the surrogacy.
The couple paid around £120,000 for the procedures, but following the births of the two children, who were born on the same day by two surrogate mothers using donated eggs and donated sperm, they were unable to leave the Turkish Republic of Northern Cyprus with the children. One of the women has been incorrectly registered as the child’s birth mother and no paperwork was provided by the clinic to state that the children had been born via surrogates. Leave for the children to enter the UK was eventually provided four years later following a legal battle.
Once they had returned to the UK, Ms W and Ms X could only become legal parents to the children by adopting them.
The outcome of the case
At a hearing in July 2024, Sir Andrew McFarlane allowed the couple to adopt the children, stating this was in the children’s best interests as they were well cared for and their milestones were being met. The Judge raised concerns about the project that the two women had embarked upon and their selfishness in creating children in their 60s. The Judge referred to the women as being the children’s carers in their old age as when the children hit their teenage years, one of the women would be in her early 80s and the other in her mid 70s. The Judge warned that his decision “should not be taken as any precedent that, in any future case on similar facts, an adoption order will be made”.
Sir Andrew McFarlane released his anonymised Judgment to “draw attention” to the case and “to offer some advice for those who may, in future, unwisely seek to follow the path taken by the two applicants”. He said “The account of the circumstances surrounding the birth of these two children strongly suggests that all four women at the centre of the arrangements were being exploited for commercial gain by those running this unlawful operation and concluded, “Put bluntly, anyone seeking to achieve the introduction of a child into their family by following in the footsteps of these applicants should think again”.
This influential case has highlighted the many difficulties that can be faced when entering into an unlawful foreign surrogacy agreement.
If you are considering embarking on a similar journey, it is suggested that legal advice is sought at an early stage to prevent the issues which were experienced in this case from being repeated. Contact our Family Law team for advice.