[2025] EWHC 927 (Fam)

Contemplating the matters set out in s.1(4) of ACA 2002 and applying them to the circumstances of this case, it is evident to me that B is a much loved and cherished little boy. He is developing well and has the close and loving relationship with his intended parents which a court hopes to see in a case such as this. I have no doubt that, were B to be capable of verbalising his wishes and feelings, he would tell me that he wanted to live with his mummy and daddy forever because that is how he experiences his relationship with them. Mr and Mrs K dote on B and he has brought much joy into their lives.

I accept that Mr and Mrs K recognise just how important it is for B to grow up with a full understanding of how he came to be born and for the circumstances of his birth to be communicated with love and in an age-appropriate way. B also needs to know about his brother, A. Mr and Mrs K will consider taking some specialist advice from a child psychologist as to how they communicate these matters to B and help him understand his place in the family. Importantly, both recognise the benefits for B of having a good relationship with Mr and Mrs Z both generally and specifically about the process of talking to him about his life story. Mr and Mrs K continue to have good contact with Mr and Mrs Z and plan to return to the USA so that B can meet them when he is older. Finally, Mr and Mrs K have committed to telling B about the egg donor who is also a part of his genetic make-up.

All of these matters amply satisfy the criteria in s.1(4) of ACA 2002 but all of these matters must be seen through the prism of B’s welfare throughout his life. In paragraph 3 of this judgment, I drew attention to the reality of what is likely befall B as a child of very elderly parents, namely the experience of loss and grief through the incapacity or death of one of his parents. That experience may strike B at a time in his childhood when he is ill-prepared to understand or come to terms with it, upending his daily life and placing him in the care of adults to whom he is not emotionally close. No matter how fit a person of Mr and Mrs K’s age may be now, health and life itself are undoubtedly at the mercy of an aging process which becomes more ever more cruel and capricious as the years go by. It is not the purpose of this judgment to moralise about the wisdom of having a baby through surrogacy at an advanced age but this court can and should ensure that the arrangements for that child’s future care have been thought about, planned and actioned in case the worst should happen.

In this case, despite the care with which Mr and Mrs K had planned and carried out their surrogacy journey, the arrangements for B’s care in the event of their death or incapacity had not been given the same attention at the time this application came before the court for what might have been a final hearing. Though there had been some discussion about what might happen with Mr and Mrs Q and, to a lesser extent, with Ms P, it was only after I expressed my concern about the lack of clarity on this issue that matters were eventually resolved by the making of appropriately drafted Wills, Lasting Powers of Attorney, and financial arrangements for B’s future care. I have no doubt that Mr and Mrs K had every intention of resolving matters in the way which emerged by the time of the hearing on 28 March but, given their ages, these were matters which should have been addressed some time ago.

Having read all the statements and reflected on what was proposed, I am satisfied that the arrangements for B’s care should either of his parents die or become incapacitated are appropriate and place his welfare needs front and centre in the short, medium and long term. The preference for a special guardianship order to secure B’s place with either Mr and Mrs Q is sensible and preserves legal B’s relationship with his parents, Mr and Mrs K. This is not only emotionally and psychologically important for him but also maintains B’s entitlement as their son to the financial benefits arising from the Trust which has been created to meet his needs after the deaths of Mr and Mrs K.

Thus, standing back and taking a holistic view of B’s welfare throughout his life, I am satisfied that I should make B the subject of a parental order in favour of Mr and Mrs K. B needs a parental order to give permanence and security to his care arrangements in circumstances where no one else other than Mr and Mrs K seek to provide lifelong care for him. The absence of a parental order would deny B the social and emotional benefits of the formal and informal recognition of his relationship and family life with Mr and Mrs K.

I agree with Mr Powell that the circumstances of this case differ markedly from those in Re Z (Unlawful Foreign Surrogacy: Adoption) [2025] EWHC 339 (Fam). Save for the ages of the intended parents, one of whom was in their 70s and the other apparently in their late 60s, Mr and Mrs K’s circumstances are very different. First, Mr and Mrs K undertook due diligence before embarking on their surrogacy journey, thereby minimising any possible risk or disruption to B after his birth. Their actions were welfare-driven and they did not encounter difficulties that might have jeopardised B’s welfare such as immigration problems, questionable parental status and a lack of transparency. In that regard, B immediately acquired US citizenship at birth and was not rendered stateless like the children were in Re Z. He was able to return to this jurisdiction with Mr and Mrs K without any difficulty, being the product of a surrogacy arrangement in a jurisdiction where these arrangements were regulated within a clear legal framework. Additionally, B had an established legal relationship with Mr and Mrs K from the moment of his birth in California, they having obtained the appropriate parentage orders pre-birth. There has also been complete transparency and cooperation by Mr and Mrs K with the individuals and the professionals involved in the entire surrogacy process.

I am also satisfied that, unlike in Re Z where concerns were raised about elements of exploitation in the surrogacy arrangements, there is no evidence in this case of either exploitation of the surrogate or indeed exploitation of Mr and Mrs K. I agree with Mr Powell that, on the contrary, this was the quintessential example of an application for a parental order arising out of a surrogacy arrangement executed in the United States and was certainly not an arrangement where the relationship between the surrogate and the applicants was “at arm’s length”. Mr and Mrs K have acted beyond reproach with respect to their conduct and contact with the authorities in California and in this jurisdiction.

At the conclusion of the hearing on 28 February 2025, I invited Mr Powell to consider any further guidance the court might give in the light of the welfare issue raised in this case following the decision in Re Z (Foreign Surrogacy) [2024] EWFC 304. In the supplemental skeleton argument submitted for the hearing on 28 March 2025, Mr Powell invited me to consider adding to the list of key issues endorsed by Theis J in Re Z above and the President in Re Z (Unlawful Foreign Surrogacy: Adoption). The list contains key issues that any person considering embarking on a surrogacy arrangement (particularly one that involves the surrogate coming from and/or the child being born in a foreign jurisdiction) should consider before they enter into any surrogacy arrangement. As Theis J observed, it is a non-exhaustive list which can only act as a guide. In his Re Z decision, the President added an additional two issues in respect of i) meaningful engagement with relevant government departments and ii) whether any of the relevant government department should be joined as parties.

I have reflected carefully on whether I should add to an already extensive list of issues but it seems to me that consideration of a child’s future welfare in the event of the incapacity of one or both of the intended parents is a matter to which intended parents through surrogacy ought to give careful consideration prior to and following the birth of a surrogate child. Those issues become even more pressing if an application for a parental order is made by a single applicant pursuant to s. 54A of the HFEA 2008. In reality, these are, of course, issues which all parents ought to consider in respect of the future welfare of their child irrespective of the manner in which that child was conceived. The additional issues which I consider should be added to the Re Z list are as follows:

The importance of those issues will vary from case to case, but they are likely to be of greater importance for single applicants and for applicants of advanced years. I also urge intended parents of advanced years or single applicants to reflect very carefully indeed on those welfare matters I have highlighted in paragraphs 3 and 28 before they embark on a surrogacy journey and cause a child to be born. It would be prudent if such applicants were to address the arrangements for the care of the child should they die or become incapacitated in the evidence filed in support of an application for a parental order, and if parental order reporters were to enquire about them whilst preparing their report for the court.

In conclusion, I have taken the liberty of listing below the Re Z issues, including those added by the President (in italics) and those suggested in this judgment (which are listed last):