[2025] EWHC 927 (Fam)

What follows is a summary of the relevant background.

Both applicants are retired and have been married for over 35 years. Desiring to start a family, the applicants experienced difficulties in doing so and Mrs K lost a number of pregnancies by miscarriage. The applicants’ first son, A, was born in 1993 following several rounds of IVF treatment. Tragically, A died from cancer in 2020, shortly before his 27^th birthday. The applicants described poignantly in their witness statements their loss and grief at A’s untimely death. Having taken heart from the stories of other grieving parents who found solace in having other children following the death of a child, Mr and Mrs K decided to embark on a surrogacy journey in the hope of becoming parents once more. Both were adamant in their statements that this was not an attempt either to replace A or to manage their grief.

By 2021, Mr and Mrs K had decided to use surrogacy services in California and, following a careful search, had identified a suitable egg donor by autumn 2022. In early 2023, they were matched with Mrs Z who became their surrogate. Mrs Z had already given birth to two children via gestational surrogacy and Mr and Mrs K felt reassured by her experience of the process. Mrs Z became pregnant following an embryo transfer and Mr and Mrs K maintained WhatsApp contact with her throughout her pregnancy, attending ante-natal and scan appointments remotely.

As is customary in Californian surrogacy arrangements, Mr and Mrs K obtained a pre-birth order in December 2023 , conferring on them exclusive parental and legal parentage status when B was born and excluding any legal or parental rights which Mr and Mrs Z might have had. In early 2024, Mr and Mrs K travelled to California and rented a property in which they expected to spend some weeks prior to B’s birth. Thus, they were on hand when Mrs Z suddenly went into labour and B was born a month earlier than expected. He was discharged from hospital into the applicants’ care a day after his birth and Mrs Z left hospital shortly thereafter.

Mr and Mrs K spent the next 7/8 weeks living in their rented property and caring for B with the assistance of a maternity nurse. Whilst they were there, they remained in close contact with Mr and Mrs Z. They returned with B to the United Kingdom in early March 2024, B travelling on a US passport and with a US birth certificate naming Mr and Mrs K as his parents.

B is a little boy with good health who is developing well. According to the report of the Parental Order Reporter, Ms X, B is an active little boy who is always on the go and is on the brink of taking his first steps. Mr and Mrs K devote themselves to his care, in which they are assisted by a nanny who comes to the family home five days a week. B was observed by Ms X to have a warm and loving bond with both Mr and Mrs K and it was plain to her that Mr and Mrs K adore him.

Mr and Mrs K are a wealthy couple and well-established in their local community. They have maintained a good relationship with friends of A, Mr and Mrs Q, a couple in their early thirties who are married with a small child of their own similar in age to B. Surprisingly, Mr and Mrs Q had no idea that Mr and Mrs K had embarked on a surrogacy journey and were informed of B’s birth by email in early 2024. Mrs Q described in her statement that this news came as a big surprise and it took her and her husband some time to process this. They eventually met B when he was 6 months old. The applicants approached Mr and Mrs Q in January 2025 and asked them to be B’s guardians in the event of their deaths or incapacity. Having reflected on this, Mr and Mrs Q agreed and confirmed their commitment to B in statements provided to the court.

Mrs K has a niece, P, who lives with her partner and is now 52 years old. She too had no idea about Mr and Mrs K’s surrogacy plans and received the news of B’s birth in January 2024. In her statement, P observed: “For a lot of the family, the initial reaction was one of surprise and disbelief. Although I was obviously surprised myself, in all honesty my instinctive reaction was one of happiness for them”. P met B for the first time in December 2024 and keeps in touch with Mrs K by WhatsApp. Following an approach from Mr and Mrs K early in 2025, P too has confirmed in a statement that she would be willing to become B’s guardian if Mr and Mrs Q were unable to act in that capacity.