The President of the Family Division, Sir Andrew McFarlane, yesterday handed down judgment in the matter of Re (Z) Unlawful Foreign Surrogacy: Adoption) [2025] EWHC 339 (Fam). The anonymised judgment sets out lessons to be learned (§25 onwards) which identified the Government’s “significant legal and public policy concerns” in respect of a foreign surrogacy agreement.
Owain was instructed by the Secretary of State for the Home Department throughout and, upon the President indicating that further submissions may be made ahead of an anonymised judgment being handed down, was further instructed by the Department for Health and Social Care and the Department for Education to make submissions expressly on behalf of the Government.
The judgment has attracted national media attention.
Owain specialises in public law; chancery, property and commercial; and employment law. He is regularly instructed by national, devolved and local government clients; as well as having a busy private practice. Owain has particular expertise in cases where his core specialisms overlap, or where they cross-over with other areas of law, as in Re Z.
For more information please contact his clerks (clerks@civitaslaw.com)
Re Z (Unlawful Foreign Surrogacy: Adoption)
The Facts
The Court was dealing with an application for adoption orders to be made in respect of two children who had been born on the same day and were each a the full genetic sibling of the other.
A surrogacy arrangement had been commissioned by the two applicants, Ms W and Ms X, who were in a long-established and enduring relationship and who were resident here in the United Kingdom.
The couple’s enquiries led to them investigating other options and, in some way, establishing a connection with a foreign surrogacy clinic, which they had understood, was based in Southern Cyprus.
After the arrangements had been advanced to a significant degree that they came to understand that the clinic was in fact operating in the Turkish Republic of Northern Cyprus, where surrogacy, on the Court’s understanding, was unlawful and where the placement of children with same-sex couples was also not permitted by law.
The Court noted that the clinic, on the information available, seemingly operated on some scale and used women from Ukraine as surrogate mothers. The contracts signed by the two applicants and the clinic show that a significant sum of money was paid for the creation of these two children. The court was told by the solicitor now acting for the applicants that it was in the region of £120,000.
The President concluded that it was in the children’s best interests for the arrangement as was in place at the time of the hearing to be consolidated and made permanent by adoption orders. It was noted that no lesser order, for example, a child arrangements order or even a special guardianship order, would achieve the necessary degree of life-long certainty that these two children are going to need.
Lessons to be learned
The President’s judgment identified lessons to be learned from the instant case and made a number of observations for those who may be contemplating commissioning the birth of a child through the services of a foreign surrogacy agency.
A list of factors to be considered which had been identified by Theis J in Re Z (Foreign Surrogacy) [2024] EWFC 304 were readily endorsed by the President; together with endorsing two further elements which the Government suggested ought to be included relating to early engagement with relevant governmental departments.
In concluding, the president said:
33. I share the high level of concern that is expressed in the government’s submissions. 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. The motives of the two applicants in wanting to become parents of babies in their late 60’s would seem to have been entirely self-centred, with no thought as to the long-term welfare of the resulting children. It was astonishing to learn, and have confirmed by their solicitor, that the applicants had not given any consideration to the impact on the children of having parents who are well over 60 years older than they are. It is likely that when they are in their early teens, these two young people will become carers for their 80 year old adopted parents. The only sensible decision that the applicants made, as I observed during the hearing, was to commission the birth of two children so that, at least, these two full siblings will have each other as they grow up
34. Finally, the fact that the court felt obliged to make adoption orders in the present case, should not be taken as any precedent that, in any future case on similar facts, an adoption order will be made. In any event, the route taken by these applicants leading to the position of even being able to apply for adoption, demonstrates the precarious nature of their circumstances and those of the children. The applicants had planned a short visit to Cyprus, yet it took four years for their entry to the UK to be granted, and that was only after the First-Tier orders and Upper Tribunal refusal to grant the Home Office permission to appeal.
35. The publication of this judgment, and the clear indication that the government may, in any future case, oppose the making of adoption orders, should put would-be parents (of any age) who are contemplating entering into a commercial foreign surrogacy arrangement on notice that the courts in England and Wales may refuse to grant an adoption order (or if HFEA 2008, s 54(1)(b) or s 54A(1)(b) is satisfied, a parental order), with the result that the child that they have caused to be born may be permanently State-less and legally parent-less. 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.