H (Anonymous Surrogacy), Re

A parental order may be made without the surrogate mother’s agreement where the court is satisfied that she cannot be found within section 54(7) of the Human Fertilisation and Embryology Act 2008. The court must scrutinise every statutory condition carefully, especially in an international surrogacy involving potentially unreliable documentation. An anonymous arrangement creates substantial evidential difficulties and may increase suspicion about the arrangement. Once the statutory conditions are met, the child’s welfare may require a parental order where it secures the intended parents’ legal status and reflects the child’s established care.

Mr and Mrs H applied under section 54 of the Human Fertilisation and Embryology Act 2008 for a parental order concerning their nearly two-year-old daughter, A. The arrangement had been made through a Nigerian fertility clinic. Mr H was A’s genetic father, but the surrogate mother remained anonymous and her identity was unknown.

The court required further evidence about the surrogacy agreement, the surrogate’s identity and the payments made. The parental order reporter initially opposed the application but later supported it after receiving additional documentation. The central issue was whether the surrogate could be treated as a person who could not be found under section 54(7), so that her agreement was unnecessary.

1. The court held that the requirements of Human Fertilisation and Embryology Act 2008, section 54(1)–(5), were satisfied. The evidence concerning payments was unsatisfactory, but the court authorised approximately £4,000 under section 54(8)(d), given A’s settled circumstances and the absence of any realistic prospect of returning her to another person.

2. Each statutory requirement is important and must be scrutinised carefully, particularly where the application concerns an international surrogacy. Although there was no comparable statutory restriction on Nigerian surrogacy, concerns identified in relation to Nigerian adoption documentation supported a cautious approach to evidence from Nigerian surrogacy arrangements.

3. An anonymous surrogate creates two related difficulties. It prevents the court from being satisfied directly that the surrogate knows of and consents to the application. It also increases suspicion that the arrangement may not be as represented. Future applicants would be well advised to avoid anonymous surrogacy arrangements.

4. On the balance of probabilities, the evidence established that the applicants had entered into a surrogacy arrangement with the Nigerian clinic, that Mr H was A’s genetic father, and that the surrogate was probably the woman identified in the available documents as “O.S.” The prospects of tracing her and securing her engagement with the proceedings were so remote that, in reality, she could not be found. Section 54(7) was therefore satisfied, and her agreement under section 54(6) was unnecessary.

5. Once the statutory criteria were satisfied, making the parental order was plainly in A’s best interests. The court directed that a parental order be issued in favour of Mr and Mrs H.