[2025] EWHC 927 (Fam)

By an application made in July 2024, Mr and Mrs K invite the court to make a parental order in respect of a little boy called B who was born in January 2024 and is thus 14 months old. B was born in the United States of America following a gestational carrier agreement executed in California. Pursuant to that agreement, an embryo was created using Mr K’s sperm and a donor egg. Mrs Z was the gestational surrogate and, alongside her husband, she is a respondent to these proceedings. Both Mr and Mrs Z have consented to the making of a parental order in favour of Mr and Mrs K and, despite receiving notice, have played no active role in the legal proceedings.

At the conclusion of the hearing on 28 March 2025, I told Mr and Mrs K that I would make a parental order for B in their favour and give my reasons for so doing at a later date.

This judgment is being reported because it raises an important welfare issue and offers some advice for those who may, in future, engage in a foreign or other surrogacy arrangement. The applicants, Mr and Mrs K, are each aged 72 years and are both retired. It is an undeniable fact that, when B goes to school at the age of 5, they will likely both be 76 years old and both will likely be 82 years old when B starts secondary school. Put starkly, Mr and Mrs K will both be 89 years old when B reaches his majority. They have begun parenting at a time in their lives when, despite their current good health, it is foreseeable that their health will decline and that one or both of them will become seriously incapacitated or die before B reaches his majority. That reality has a direct impact on B’s welfare, both immediately and in the not so distant future. In those circumstances, it behoves the court to examine carefully what arrangements have been made to secure B’s welfare should incapacity or death befall either of the applicants.

I make some further observations on this welfare issue later in my judgment.