BY ALEXANDER FINCH AND KEELIN MCCARTHY
Recent years have seen a steady rise in UK nationals and residents entering into surrogacy arrangements overseas. However, with no over-arching international agreement to regulate surrogacy or provide a cross-jurisdictional standard, those entering into such arrangements often fail to understand the immigration and nationality law implications for the future child. Alexander Finch, Partner at Constantine Law, and Keelin McCarthy, Barrister at One Pump Court Chambers, highlight stark warnings from the Family Court that it will not continue to patch up the problems created by people who fail to take advice before entering into international surrogacy arrangements.
International surrogacy
Under the Surrogacy Arrangements Act 1985, the UK permits domestic surrogacy, whereby one woman carries a child for another with the intention that the child should be handed over at birth to a commissioning couple (herein also referred to as the ‘intended parents’) and raised as their child. However, it does so only under limited circumstances. Under Section 1A, no surrogacy arrangement is enforceable by or against those making it, and under Section 2, it remains a criminal offence for a person on a commercial basis to initiate or take part in negotiations with a view to the making of a surrogacy arrangement.
While still not common, there has been a steady rise in UK nationals and residents entering into surrogacy arrangements overseas. The main reasons cited by intended parents for entering into international arrangements are the robustness of the legal framework in these competing jurisdictions, as well as the ease of finding a surrogate. In the US, for example, the states where commercial surrogacy is permitted, clinics well-regulated, and where children born of surrogacy arrangements can also quickly obtain US passports to travel back to the UK, are seen as particularly attractive to UK intended parents (see Jadva, Vasanti, Helen Prosser, and Natalie Gamble. 2021. “Cross-Border and Domestic Surrogacy in the UK Context: An Exploration of Practical and Legal Decision-Making.” Human Fertility 24 (2): 93–104. doi:10.1080/14647273.2018.1540801). However, the US is also the most expensive jurisdiction and there is a market for international surrogacy arrangements in several other countries as well, where the legal regime may be more difficult.
Despite the increase in international surrogacy arrangements, there is no over-arching international agreement regulating surrogacy or providing a cross-jurisdictional standard. This contrasts with adoption, where the Hague Convention 1993 on Protection of Children and Co-operation in Respect of Inter-country Adoption applies.
Those entering into international surrogacy arrangements frequently fail to understand the immigration and nationality law implications of their agreements. While local laws may recognise a commissioning mother or father as the legal parent of a child, separate British laws continue to govern the child’s legal parent and British nationality entitlement.
Where the surrogate is married, under section 35(1) of the Human Fertilisation and Embryology Act 2008 the mother and father of a child are considered to be the woman who carries and gives birth to the child, and her husband, i.e. the man she is married to at the time of the child’s conception, unless it can be shown that the husband did not consent to the arrangement.
The names of the intended parents might appear on the local birth certificate, and they may be recognised in the law of the country of birth as the parents. But they may not be the parents in UK law. A baby born using the sperm of the commissioning father to a foreign national surrogate who is married at the time of conception will not become a British citizen by operation of law, even if the biological father is a British citizen. There are significant immigration and nationality implications arising from this.
It may come as a shock to intended parents that UK laws do not recognise either of them as a parent of the child, and that they therefore cannot easily bring the child to the UK. In some cases, babies have ended up stateless and stranded in countries where no person has parental responsibility for them.
A solution for surrogacy arrangements is available in the form of a Parental Order under section 54 of the Human Fertilisation and Embryology Act 2008. To make a parental order, the court must be satisfied that each of the section 54 criteria are met and, if they are, consider whether making a parental order will meet the lifelong welfare needs of the child. Importantly, these include that the intended parent, or at least one of them in the case of a couple, is the child’s biological parent.
Significant cases
In a series of cases reported within the last 18 months concerning international surrogacy arrangements, the court was concerned by an aspect of the arrangements, and a judicial warning was given to would-be parents contemplating international surrogacy arrangements. This has resulted in the development of a ‘checklist’ of issues which commissioning couples, and their advisers, should consider before proceeding. We have summarised the cases below, before setting out the full list of the factors they identify as relevant. The facts of the cases, and the accompanying judicial warnings, should be kept in mind by professional advisers.
Z (Foreign Surrogacy) [2024] EWFC 304
The case of Z (Foreign Surrogacy) [2024] EWFC 304 (24 October 2024) involved a same-sex couple who were both foreign nationals settled in the UK (one with Indefinite Leave to Remain (ILR), the other with EU Settled Status). They entered into a surrogacy arrangement with an agency ostensibly based in the Republic of Cyprus, but which later turned out to be based in a third country with procedures taking place in the Turkish Republic of Northern Cyprus, a jurisdiction which does not permit surrogacy in same-sex relationships. The embryo was created from an anonymous egg donor and the sperm of one of the UK-resident couple, and carried by an unmarried surrogate from a third country. The agency encouraged giving false information to the authorities in order to obtain a passport, to conceal the surrogacy arrangement. The child was born in a further country (‘W’) in which same-sex surrogacy was not legal, and a final payment to the agency was made in cash. A visa for travel to the UK was able to be secured when the child was around seven months old.
The judgment endorsed a list of issues to be considered by those considering embarking upon surrogacy, in particular international surrogacy, before entering into an agreement. These have been expanded upon in subsequent cases. The judge deprecated the approach of the parents in the case, commenting that “this is regrettably another example where there has been a lack of due diligence”, and an “abdication of the most basic responsibility of intended parents” (para 44) to have clarity about the issues covered in the list, before entering into the surrogacy arrangement.
Z (Unlawful Foreign Surrogacy: Adoption) [2025] EWHC 339 (Fam)
The list was further amplified and supplemented in Z (Unlawful Foreign Surrogacy: Adoption) [2025] EWHC 339 (Fam) (19 February 2025), a judgment delivered by the President of the Family Division, in which the Home Office was joined as a respondent, and in which further submissions were made on behalf of the Home Office, Department for Health and Social Care, and the Department for Education.
The commissioning couple in this case were a same-sex couple who were both long-term residents of the UK. As in the previous case, arrangements had already been made when it was revealed that the clinic was operating in the Turkish Republic of Northern Cyprus, in which surrogacy in favour of same-sex intended parents was not lawful. The couple were of advanced years, with one being over 70 years old at the time of the hearing, and the other ‘fast approaching that age’. The embryos were full genetic siblings but had separate gestational carriers who were Ukrainian nationals. The children were born on the same day at the apparent direction of the clinic rather than medical reasons relating to the pregnancies. Perhaps most significantly, the children were stateless at birth, being neither nationals of Ukraine, nor Northern Cyprus, and there was no genetic link to either intended parent. The couple were encouraged to develop a false narrative concealing the fact of a surrogacy arrangement. Applications for entry clearance were then refused by the Home Office, and were only granted following a decision by the Upper Tribunal, with the children eventually obtaining entry clearance for the UK only at the age of four.
The judicial warning in this case was stark.
…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. (para 35)
Notably in this case, counsel for the Home Office added that there were significant concerns on grounds of public policy, and in similar cases in future, they may refuse immigration applications, oppose immigration appeals, and furthermore may oppose adoption orders on public policy grounds.
K & Anor v Z & Anor [2025] EWHC 927 (Fam)
Most recently, in K & Anor v Z & Anor [2025] EWHC 927 (Fam) (16 April 2025), the list was again cited and expanded. This case involved an opposite-sex married couple of advanced age, both being 72 years old and retired at the time of the final hearing. In this case, the husband contributed sperm to the embryo, and a married surrogate in California, USA carried the baby to term. While there was lesser judicial admonition, the court was particularly focused on the advanced age of the applicants, and required a second hearing to take place at which the applicants were to address the arrangements for the child’s care should one or both of them become incapacitated or die. In its judgment, the court endorsed again the list in Z (Foreign Surrogacy) [2024] EWFC 304, and added to it.
Relevant factors
The list, as quoted in the most recent judgment, therefore now reads as follows. Items (17) to (19) were added by Z (Unlawful Foreign Surrogacy: Adoption) [2025] EWHC 339 (Fam) and items (20) to (21) were added by K & Anor v Z & Anor [2025] EWHC 927 (Fam).
(1) What is the relevant legal framework in the country where the surrogacy arrangement is due to take place and where the child is to be born? Put simply, is such an arrangement permitted in that country?
(2) When the child is born, will the intended parents be recognised as parents in that country, if so how? By operation of law or are the intended parents required to take some positive step and, if so, what steps need to be taken and when (pre or post birth)?
(3) What is the surrogate’s legal status regarding the child at birth?
(4) If the surrogate is married at the time of the embryo transfer and/or the child’s birth, what is the surrogate’s spouse’s legal status regarding the child at birth?
(5) If an agency is involved what role do they play in matching the surrogate with the intended parents?
(6) What information, preparation or support has the surrogate had about any proposed surrogacy arrangement?
(7) Does the surrogate speak and/or read English? If not, what arrangements are in place to enable her to understand any agreement signed?
(8) Will the intended parents and the surrogate meet and/or have contact before deciding whether to proceed with a surrogacy arrangement?
(9) When will the agreement between the intended parents and surrogate be made, before or after the embryo transfer, and what are the reasons for it being at that time?
(10) What arrangements are proposed for contact between the intended parents and the surrogate during the pregnancy and/or after the birth? For example, is it only via the agency or can there be direct contact between the intended parents and the surrogate?
(11) In which jurisdiction will the embryo transfer take place and in which jurisdiction will the surrogate live during any pregnancy?
(12) Can the jurisdiction where the child is to be born be changed at any stage and, if so, by whom and in what circumstances?
(13) What nationality will the child have at birth?
(14) Following the birth of the child, what steps need to be taken for the child to travel to the United Kingdom? What steps need to be taken to secure any necessary travel documentation for the child and how long does that take?
(15) Will the intended parents need to take any separate immigration advice to secure the child’s travel to the United Kingdom and what is the child status once the child has arrived in this jurisdiction?
(16) Keeping a clear and chronological account of events and relevant documents is not only important for the purposes of a parental order application but also, importantly, retains key information regarding the child’s background and identity.
(17) Parties should consider early and meaningful engagement with either or all of HD, DfE and/or DHSC (depending on what the particular issues which have arisen are and bearing in mind the different responsibilities of each), especially where there are, or there are intimated proceedings, in some court or tribunal (for example, the First-tier Tribunal (Immigration and Asylum Chamber));
(18) In particular, that if proceedings are issued in the Family Court, early consideration should be given to the addition of either or all of HD, DfE and/or DHSC (again depending on what the particular issues which have arisen are and bearing in mind the different responsibilities of each) as a party;
(19) What steps have been taken by the intended parents in relation to estate planning (before and after a parental order is made) in respect of the child’s future welfare?
(20) What steps have been taken by the intended parents in respect of future care and financial arrangements for the child in the event of the incapacity of one (or both) of the intended parents?
(21) What steps have been taken by the intended parents in respect of future care and financial arrangements for the child in the event of the death of one (or both) of the intended parents?
Comment
It is perhaps understandable that those seeking to build their families through international surrogacy will have their primary focus on local surrogacy laws. But international surrogacy arrangements will, by their nature, involve an immigration and nationality element, even where both intended parents are long-term UK residents, as the above cases show. International surrogacy cases carry a clear risk of babies and young children becoming stranded overseas, without any person having parental responsibility for them, and without entitlement to British or to any other nationality. They also, as do international adoption agreements, carry wider risks of trafficking and exploitation of women and babies.
In March 2023, the Law Commission and Scottish Law Commission produced their report “Building Families through Surrogacy: A New Law” setting out a core report and new draft surrogacy bill (ILPA’s response to the Law Commission’s Consultation can be read here). This proposed a “new pathway” for the UK which, among other reforms, would introduce screening and safeguarding checks prior to conception, and enable intended parents to be the legal parents of the child upon birth in the UK. It was anticipated that by putting UK legal arrangements on a firmer footing, the proposed changes would reduce the attractiveness of overseas routes. However, in April 2025 the Government confirmed that they would not be taking forward the Law Commission’s 2023 recommendations due to ‘significant demand on parliamentary time and resources’.
Meanwhile, it appears that the number of surrogacy arrangements continues to rise. While not every surrogacy arrangement will result in a parental order, the number of parental orders made in England and Wales shows a clear upward trend:
| Year | No. of parental orders made (England and Wales) |
|---|---|
| 2015 | 331 |
| 2016 | 400 |
| 2017 | 332 |
| 2018 | 374 |
| 2019 | 445 |
| 2020 | 423 |
| 2021 | 423 |
| 2022 | 449 |
| 2023 | 514 |
| 2024 | 477 |
| 2025 | 524 |
The figures demonstrate continued demand despite the legal uncertainty. Reform of the UK’s surrogacy laws offers an opportunity to remove this uncertainty and put the best interests of the child at their centre. Until such times, anyone looking to enter into an international surrogacy arrangement should heed the Family Court’s warning and seek legal advice in advance.
Alexander Finch is a Partner at Constantine Law where he is regularly instructed in relation to international surrogacy arrangements. Keelin McCarthy is a Barrister at One Pump Court Chambers and a visiting lecturer at the University of Law where she teaches human rights law and immigration law.
ILPA invites members and other leading experts to contribute articles to its monthly blog. The views expressed in all blog posts are the authors’ own and are not necessarily those of ILPA.
Related reading
Related training and events
ILPA Conference on Family & Immigration Law, 11 March 2026
ILPA Webinar on Surrogacy. Date tbc.
Please see ILPA’s 2026 Training Programme for details of all upcoming training sessions.
Related working group
ILPA Family and Personal Working Group
- Document Date
- Wednesday February 18, 2026