Q (Surrogacy: Legal Advice), Re

A parental order may be made for a child born through an international surrogacy arrangement where the statutory conditions are satisfied and the order promotes the child’s lifelong welfare. Guidance such as the amended Re Z list assists good practice but does not create additional statutory criteria. The court must examine cross-border arrangements carefully, including the legal framework governing the surrogate, embryo transfer, intended parentage and birth, and the consequences for immigration and documentation. Independent legal advice before entering an international surrogacy arrangement is strongly advisable. Good faith and the child’s welfare may justify authorising payments and making the order despite serious legal and practical irregularities.

Mr A, a single British man, applied for a parental order concerning Q, born in Kyrgyzstan following an arrangement made through a clinic and agency in Northern Cyprus. The embryo was created using Mr A’s sperm and a donor egg. Ms X, the gestational surrogate, consented to the order and took no active part in the proceedings.

The arrangement involved several jurisdictions and resulted in substantial difficulties obtaining Q’s travel documentation and bringing her to the United Kingdom. The court considered whether the requirements of s.54A of the Human Fertilisation and Embryology Act 2008, including the payment provisions, and the child-welfare requirements were satisfied.

1. Order made. The court made a parental order in favour of Mr A. Q’s welfare throughout her life was paramount, and the order was necessary to provide permanence and security for her care and to recognise her social, emotional and biological family life.
2. All the statutory conditions in s.54A of the Human Fertilisation and Embryology Act 2008 were satisfied. Q was artificially conceived and genetically related to Mr A; the application was made within six months; Q’s home was with Mr A; he was domiciled in the United Kingdom and over 18; Ms X had given valid consent more than six weeks after the birth; and no previous order had been made.
3. The payments made to Ms X and the agency were considered transparently. The court found no abuse of public policy in the payment to the surrogate. In any event, Q’s welfare required the payments to be authorised, and the court authorised them.
4. The welfare checklist in s.1(4) of the Adoption and Children Act 2002 was satisfied. Relevant factors included Q’s good health and development, her close relationship with Mr A, arrangements for her future care, and Mr A’s recognition of the importance of explaining her origins and preserving an appropriate relationship with Ms X.
5. The amended Re Z list is guidance to good practice, not a set of additional conditions under s.54 or s.54A. It may assist the court when public-policy issues or possible harm are relevant, and can help intended parents address immigration, documentation and other cross-border difficulties.
6. The court criticised the commercial agency and clinic’s broad assurances about where the child could be born. The case demonstrated the risks of proceeding without independent legal advice, including legal uncertainty, possible illegality, administrative delay and risks to the surrogate and child. These observations were significant guidance for any future international surrogacy application.