SD23P20230/SD15/25 - [2025] EWHC 2960 (Fam)

An application for a Parental Order following a conventional surrogacy may only be made if the gametes of the applicant, or at least one of two applicants, were used to bring about the creation of the embryo – HFEA 2008, S54(1)(b) and S54A(1)(b)

Pursuant to section 42(5) Adoption and Children Act (‘ACA 2002’) the child must have their home with the applicants for not less than three years, or the court can give leave - section 42(6) ACA 2002. As the chronology set out above captures, Mr and Mrs P have already been given leave to make an adoption application in relation to J.

Sections 19 and 20 ACA 2002 are not engaged. Therefore, the prescribed forms referenced within section 52(7) ACA 2022 and as set out within PD5A are not a mandatory requirement. Rather, as per FPR 2010, r14.10(2) consent to the making of an adoption order maybe given in the form referred in PD5A or a form to the like effect or otherwise as the court directs (emphasis underlined). Here, Ms T has consistently given her consent to J’s adoption by Mr and Mrs P. She did so again in her oral evidence before me. Accordingly, I direct that her consent need not be given on the form referred to in PD5A.

Health reports should be provided no more than three months earlier (FPR 2010, r14.12). The court can be satisfied in this case that although slightly older, the medicals are complete, and no additional reports are needed. 

I accepted the Guardians submission that with C and Another v E (International Surrogacy and Domestic Adoption) [2025] 2 FLR 637well in mind and having considered the evidence, sections 92 or 95 ACA 2002 are not engaged (or breached) in this case. 

Part 14 FPR 2010 provides that a father without parental responsibility is not an automatic respondent to proceedings for an adoption order. However, the procedural rules provide a specific process by which the interests of a father without parental responsibility can be considered. Where the father’s identity is known, the Adoption Agency have certain duties (Adoption Agency Regulations 2005, Reg 14(3) and (4)). Those duties (including contact with the father) arise ‘if the agency it satisfied that it is appropriate to do so’. As a matter of practice, a father without parental responsibility should be informed of proceedings unless for good reason the court decides it is not appropriate to do so. The Court of Appeal comprehensively considered the approach to be adopted in notifying fathers and relatives of an adoption application inRe A, B and C (Adoption: Notification of Fathers and Relatives) [2020] EWCA 41. There is a careful balance to be struck. However, notification can only take place if there is someone to notify.  

In making a decision to make an adoption order, the child’s welfare throughout their life is my paramount consideration and I must apply section 1 of the ACA 2002.

I begin by quoting the words of Peter Jackson J, as he then was, in M, F and H [2013] EWHC 1901 (Fam):

“Happily, many children are born to individuals or couples who have faced challenges in conceiving. Some births follow treatment at licensed clinics and others originate from informal arrangements. Either way, those involved must often be confronted by profound feelings and powerful forces. These include, relevantly to this case, a yearning for children, a need for friendship and a hunger for sex, forces that can overpower and defeat routine social conventions. Nor should it be forgotten that, however difficult or unsatisfactory the circumstances of conception may have been, a child – as here – has been born. But it is naïve to ignore the difficulties that can arise from time to time. Even in the field of regulated fertility treatment there are clear examples: laboratory error (Leeds Teaching Hospitals NHS Trust v A [2003] 1 FLR 1091; incorrect clinic procedure (Re E & F [2013] EWHC 1418 (Fam)); deception (Re R (a Child)(IVF: Paternity of Child) [2005] 2 AC 621). Nonetheless, regulation is broadly successful in protecting participants from exploitation and from health risks, while providing some certainty about legal relationships. Codes of Practice limit the number of times a person can donate sperm: in this country a donor can normally donate to a maximum of 10 families (see HFEA donation policy). In comparison, participants in informal arrangements have to judge all risks for themselves. They may not be in a good position to do so. Those seeking to conceive may be in a vulnerable state and not all donors are motivated by altruism.

I find that in this case Mr and Mrs P were desperate to have a child of their own. Mrs P had had a previous child with another partner, but that child had died in infancy of an inherited condition. She was left lost and bereft by their death. She longed for a family and to have children with Mr P. Mr and Mrs P are in a loving and enduring relationship. They tried to conceive without success. They turned, as many do, to their GP and to the local hospital for fertility tests. Mr P was found to have a normal sperm count. Mrs P had PCOS and was not ovulating regularly. There was also a possibility, albeit small, that any child she conceived would have the same condition as her first child. The advice she was given was that she could go through pregnancy using donor eggs but, as Mr and Mrs P, discovered the cost of doing so was huge. I accept, as the applicants tell me that it was at this point, they started to explore other avenues to parenthood whilst also continuing to try to conceive naturally.

Overtime, Mr and Mrs P discounted adoption and fostering as routes to parenthood perceiving those routes to be uncertain and boundaried by red tape. They had , however, conducted their own research into surrogacy. To them the fees for the authorised and regulated surrogacy agencies appeared expensive and beyond their reach. They considered those fees, the expenses payable to the surrogate and the waiting lists to join an agency were too greater barriers to parenthood and discounted that route. They had begun to explore the independent surrogacy route. They discovered through social media relevant groups and talked to others about their experience of independent surrogacy. Through a social media surrogacy group, they met Ms T.

I accept the applicants’ evidence that they were careful to get to know Ms T. They met her in person and kept in touch with her thereafter. Initially Ms T was not available to act as a surrogate as she had committed to another couple but that fell through and in March 2021 , Ms T agreed to act as a surrogate for Mr and Mrs P. Ms T had previously been signed up with an authorised agency and she had the relevant forms which she and the applicants used as templates for their discussions. It was agreed by Mr and Mrs P that Ms T did not dictate the terms of the surrogacy agreement any more than they did. It was a specific clause of the agreement which they entered that the surrogate must abstain from sexual intercourse from time of agreement until pregnancy is confirmed.

I accept that the method of insemination agreed and used throughout was that Mr P and Mrs P would go to Ms T’s home where Mr P would provide a semen sample and then Mr and Mrs P would leave, and Ms T would inseminate herself. I reject Ms T’s assertion that on the last occasion, unknown to her, Mr and Mrs P introduced a third party’s semen. They would have no reason to do so. The couple wanted a biological child. Mrs P attended Ms T’s home with Mr P when he provided a sample. Mr P’s fertility was not in doubt. They had used Mr P’s sperm when freezing eggs at the fertility clinic. There is no evidence they did use third party’s semen.

I find that Mr and Mrs P knew of Ms T’s lifestyle choices before they entered into the surrogacy agreement with Ms T. They knew she continued to date men during periods when she was trying to conceive. I find that they ought to have been aware that despite the clause in their agreement, there was a risk Ms T would have penile penetrative sexual intercourse when she was trying to conceive for them even if they did not want to believe that she would.

I find that Ms T did not take her responsibility to the child she was creating seriously enough. I find that Ms T did have unprotected penetrative penile sexual intercourse with a man on or around 31 May 2022. That is the plain and accurate meaning of the messages about which she was cross-examined. It is the only credible explanation for Mr P not being J’s biological father. Ms T told me in her evidence that her only motivation to be a surrogate was to help Mr and Mrs P become parents. Having heard her give evidence, I do not consider that was her only motivation although it may have been part of it. On the evidence she gave I cannot pinpoint her precise motivation, but I can find it was complex and that it is likely that it included her own strong lifestyle choices. I find that Ms T’s unwillingness to be honest about how J was conceived, and J’s likely father, is not child-centric. I find that Ms T is an obviously intelligent woman who had made a conscious decision to stick to her narrative and that in doing so she has put her own interests before J’s best interests.

On 16 June 2022 Ms T told Mr and Mrs P she was pregnant. Mr and Mrs P had always wanted to be part of the pregnancy. Ms T duly showed them the pregnancy test and invited them to the scans which they attended. They felt bonded to baby J in utero and ordered extra private scans to be able to consolidate the bonding process. That bond has grown into what I find is a strong attachment.

Soon after the last insemination, Ms T informed Mrs P that she had had sexual intercourse with a man shortly after she had inseminated herself with Mr P’s sperm but said she had used a condom. Mr and Mrs P were therefore aware at that point that there was a risk the baby was not Mr P’s biological child although, I consider that they chose at that time to put the risk to the back of their minds.

I find that by the time of the 4 D scan in December 2022, Mr and Mrs were concerned that Mr P may not be J’s biological father. I find that that was a concern that the paternal grandmother shared, hence she was saying at that time that she would not continue to fund the surrogacy arrangement unless there was proof of paternity. Understandably, the paternal grandmother who was funding the expenses of the surrogacy arrangement in the main wanted to be re-assured before she paid any further monies. Accordingly, Mr and Mrs P attempted to arrange pre-natal DNA testing, but the sample taken by Ms T was insufficient and she refused a second test. Mr and Mrs P preferred to proceed in the belief that J was Mr P’s biological child and although the paternal grandmother had doubts, she continued to help fund the surrogacy arrangement.

I accept that Mr and Mrs P were present at J’s birth. Once J was born, she was handed directly to Mrs P. Mr P gave J their first feed. After a short period of recuperation Ms T went home leaving J and Mr and Mrs P at the hospital where they remained overnight. On discharge J went home with Mr and Mrs P. I accept the common evidence that initially Ms T and Mr and Mrs P remained in touch, meeting up approximately monthly.

I find that as J grew, their complexion became darker and it became obvious that J was a mixed-race child. I find that by the time they applied for a Parental Order on 29 May 2023, Mr and Mrs P had real doubts about J’s paternity. I find that irresponsibly they ignored their doubts and ploughed ahead with an application for a Parental Order. I find that by the time the samples were taken for the Peace of Mind report, it is likely that Mr and Mrs P and the paternal grandmother knew that Mr P was highly unlikely to be J’s biological father.

In their initial surrogacy statement, Mr and Mrs P told the court that their plan was to be honest with J about how she was conceived. I accept that that may have been their intention when they entered the surrogacy arrangement, but I find that what happened has been anything but honest. I find that the lies told by them have strong origins in Mr and Mrs P’s love for J who they regarded as their child whoever their biological father was. I find that they were terrified of losing a child to whom they were strongly attached and who was strongly attached to them. I find that it is likely they feared that if J was not Mr P’s biological child, J would be removed from them and possibly taken into care and adopted by others. I find that they are also likely to have been frightened that Ms T could withdraw her consent to the Parental Order or subsequently, the Adoption order at any time.

On 5 June 2024 Mrs P on behalf of both applicants wrote a statement to withdraw the application for a Parental Order. Within it they stated that although they had not had a second DNA test, they now accepted that Mr P is not J’s biological father. They stated that as J has grown J’s complexion has obviously darkened and it has become apparent that they are of mixed race. Their second child K is noticeably different in complexion to J. Within this statement the applicants then stated that Ms T revealed that she had in fact had a sexual relationship with a male during the period they were trying to conceive J despite the surrogacy agreement. They described how they had been deceived and felt their trust has been broken. All that appears perfectly reasonable at face value but of course it does not explain the redacted Peace of Mind report which they filed with the court, and which showed Mr P as J’s biological father.

In their statement dated 19 July 2024, Mr and Mrs P accept that in their discussions with the Parental Reporter they had had no difficulty with providing the required DNA test. They chose NorthGene from the list of court approved providers. They received the results on 27 July 2023. There is no mention within this statement of editing the NorthGene report or that the unedited version of the report they had obtained said it was not for legal purposes. There is no mention within this statement of how the NorthGene report came to identify Mr P as J’s father.

The next statement from the applicants was dated 1 January 2025. It had a heading Circumstances of obtaining the DNA test under which they explained that they chose NorthGene from the list provided by the Parental Reporter because it was the cheapest option. They set out how Mr P took his own cheek swab, and the paternal grandmother took J’s cheek swab. In paragraph 6 they state the result was emailed to us on 27.07/23 stating Mr P was the biological father of J […] We had no reason to doubt the result at the time and were relieved confirmed paternity. Later within the statement they express how they cannot understand why or how the DNA test from NorthGene confirmed paternity. This highlights to us the importance of using a court approved tester and to have a third party collect the sample. We intend to contact NorthGene once court proceedings are over to gain mor information on what they think may have produced a false result. That was, in my judgment, an attempt to deflect responsibility away from themselves and wrongly place it at NorthGene’s door. It does not engage with how they came to use a report which is clearly not to be used for legal purposes and how and why that report was edited to remove that it was a peace of Mind Report and not intended for legal purposes and why it is edited version which the Parental Reporter saw and was before the court.

Mr and Mrs P filed a further statement on 17 April 2025 in which they stated that they had been thrilled to receive the results of the NorthGene DNA test and wanted to share it with family and friends. Mrs P edited the document leaving only the result before they shared it with their family and friends. They had intended to, but in fact had not, undone all the editing but claim to have never hidden from the Parietal reporter that this was a Peace of Mind test. In fairness to them, as stated above, the first report from the Parental reporter does mention that it was a Peace of Mind Report.

On 18 July 2025 the paternal grandmother filed and served a statement within these proceedings. She recalls that she was present in Mr and Mrs P’s home, the same day as the DNA kit from NorthGene arrived. According to her Mrs P was out shopping and had asked Mr P to get the test done and get on with it. Mr P had taken his own sample and given her the swab to take J’s sample. She says she took a swab from J’s mouth and gave it back to Mr P. She accepted within that statement that she could have contaminated J’s swab. The paternal grandmother attended the hearing before me on23 July 2025. She tells me that the fact that I mentioned the Family Court required candour struck home to the extent she filed and served a second statement in which she says she took the sample from herself without Mr P’s knowledge. She said she did it because she was concerned that Mr P was not J’s biological father.

In their statement of 14 August 2025 Mr and Mrs P acknowledge that they have previously misrepresented the truth. They had spent tens of thousands of pounds on surrogacy and could not afford the £400 DNA test for legal purposes. They chose the Peace of Mind report in the hope it would not be noticed and they would avoid the extra cost. They had found out after the hearing before me on 23 July 2025 that the paternal grandmother had submitted her swab to NorthGene rather than J’s swab. She had done it on the spur of the moment and because she was concerned about the issue of paternity as J’s complexion was growing darker. They had taken the paternal grandmother’s admission as a trigger to be truthful themselves. They had previously feared if they told the truth they might lose J to her biological father, if found; the child might be taken into care and adopted by others or Ms T would react negatively and withdraw her consent to J’s adoption.

I have already set out the relevant oral evidence of the parties.

I find that Mr and Mrs P purchased a Peace of Mind report from NorthGene not because it was cheaper but because they are likely to have known that for a Peace of Mind Report they would be responsible for the sample taking and collection. There would be no independent observation of the sample collection. I find on her own admission that Mrs P edited the report to remove all signs that it was a Peace of Mind Report and not to be used for legal purposes. I find that Mr and Mrs P submitted that edited report to the court. I find that that was not a mistake but was done knowingly. I find that by submitting an edited report the applicants knowingly misled the Guardian and the court.

I have already found that by the time the Peace of Mind report was commissioned, Mr and Mrs P and the paternal grandmother are likely to have known that it was highly unlikely that Mr P was J’s biological father. The Peace of Mind report when received stated that Mr P was the biological father of J. That was not a mistake on North Gene’s part. I find that they had been supplied with cheek swabs from the father and the paternal grandmother. The paternal grandmother has told me that she provided a swab from her cheek instead of J’s cheek. I find she did. It is incredulous to suggest, as she did, that she did so without any prior knowledge that that could result in Mr P being considered to be genetic match for J. If she did not know that would be a likely outcome, then why would she do it is the rhetorical question that the paternal grandmother’s evidence did not answer. I find that the paternal grandmother gave a swab from her own cheek because the outcome that Mr P was thought to be the biological father of J was that which she wished to achieve. I have already given my reasons for rejecting Mr P’s evidence that he did not see his mother take the test. I find that he did and consequently I find that he knew that the NorthGene report was a sham. I find that he knew that when he submitted it to the court. I find that the grandmother has not revealed her son’s part in what happened to protect him. I find that Mr P has not told the whole truth about the taking of the swabs because he feared the ramifications of doing so, including potential contempt proceedings. I find that the substitute swab is another example of Mr P’s strong desire to be a parent and his belief that the end justified the means. I accept Mrs P’s evidence that she was out of the home at the time. Accordingly, she would not have seen the paternal grandmother take a swab from her cheek and use that one for the testing. I find on the evidence before me that Mrs P being out of the house when the swabs were taken is inconsistent with the evidence I have of her being an attentive mother who puts her children first. This was an important test and a necessary part of the Parental Order she and Mr P wanted in relation to J. I find that it is inconceivable that she would not want to be there when her baby’s mouth was swabbed yet she was absent when J’s mouth was swabbed. I reject the evidence that this was because Mr and Mrs P wanted the test done quickly and it could not wait. This was an important test, and it could wait Mrs P’s return from shopping, if that is what the parties wanted. I find on the facts that the only reasonable implication that can be drawn is that Mrs P was out of the home to distance her from the paternal grandmother’s swab being passed off as J’s sample.

I have rightly been reminded that the question for me at this stage is what impact those lies have on the welfare decision I must make for J. With that well in mind I now turn to consider the application for adoption before me.

As is foreshadowed earlier in this judgment when I set out the chronology, I find that Ms T has given her consent to J’s adoption freely and unconditionally.  She has never wavered in that stance. In her oral evidence before me Ms T confirmed her consent to J’s adoption by Mr and Mrs P. In the circumstances, I do not consider it necessary that she complete a prescribed form and accept her consent which was first given in July 2024 and was last restated in the witness box on 22 September 2025

I have already made a non-notification direction in relation to J’s paternal family. I have revisited my previous decision in the light of all the evidence I now have. Ms T did not give any evidence that would enable J’s father to be identified or cause him to be identified. There are no leads to follow up to ascertain for J who their paternal family are. There is no person who has been identified who could be notified. Accordingly, the non-notification direction stands.

Given Ms T’s stance throughout the proceedings and before me, J’s paternity remains unknown and is likely to remain unknown. J will not know what they have inherited from their biological father and the paternal side of their family.

The lies and deceitful actions of Mr and Mrs P have impacted on J. Their lies and deceitful actions go to the heart of J’s identity. But for the court querying the NorthGene report, J would have gone through their life believing Mr P was their biological father. Their birth certificate would have been incorrect as Mr P is registered as J’s biological father. Mr and Mrs P have to take responsibility for their lies and the harm they have caused J and the risk of harm to which they have exposed them. The harm in question is psychological and emotional harm which comes from not knowing your true identity. I have had to take the harm they have caused J into account when making my welfare evaluation – S1(4) ACA 2002. I have had to consider whether there is a risk of that harm continuing. Given the findings I have made about Mr and Mrs P’s motivation when acting deceitfully I consider that any future risk is mitigated by the findings of fact in this judgment and by the fact that if I make an adoption order, Mr and Mrs P’s fear of losing J will dissipate.

On the basis of all the evidence before me, I find that it is in J’s best interests that their place in Mr and Mrs P’s family is solidified and made permanent by an adoption order. No lesser order, such as a child arrangements order or a special guardianship order, will do. No other order will provide the stability and permanency J’s welfare requires. No other order will reflect that J is a fully integrated member of Mr and Mrs P’s family and will be throughout their life. No other order will provide J with the legal status that adoption will. That legal status reflects the physical, the emotional and psychological relationship J has with Mr and Mrs P and which will endure throughout her life. Mr and Mrs P have been J’s psychological parents since birth. If J were able to articulate their wishes and feelings, I have no doubt that it would be to be brought up with Mr and Mrs P and for K and the baby yet to be born to be their full siblings because that is how J views them. I find that Mr and Mrs P are more than able to meet J’s physical, emotional and psychological needs. Ms T is J’s biological mother, but she has never taken any step to fulfil that role. J does not and is unlikely to know who their biological father is because Ms T will not identify them. The reality for J is that losing their biological family is unlikely to have any impact on them now or throughout their life. J’s reality as viewed through their eyes is that they are Mr and Mrs P’s child and part of their family with K as their sibling and another sibling expected soon. The adoption order will give J the legal status which reflects her reality.

I make the adoption order because it is in J’s lifelong best interests that I should do so. My focus in making my analysis has been on J’s lifelong welfare. Nothing within this judgment should be read as my condoning the behaviour of any of the lay parties. I have already set out above the impact of the lies told by Ms T on J and the impact of Mr and Mrs P’s deceit on J. In addition, for J, the actions of the lay parties, individually and cumulatively, have delayed the resolution of these proceedings. J has had to wait for over 2 years before a final order can be made in relation to them. They have been the subject of protracted proceedings and their homelife has been the subject of professional and court scrutiny. The lies and subterfuge in this case have resulted in an extensive and protracted court process.

The lies and deceit have had procedural implications and could have had serious commercial and reputational consequences for NorthGene. The CEO of NorthGene had to take legal advice and, at one point the company’s reputation was wrongfully being put into doubt because of the outright lies told in this case by Mr and Mrs P. The lies have resulted in the unnecessary instruction of Prof Syndercombe Court and thus in unnecessary cost and further delay.

Mr and Mrs P and the paternal grandmother have complained in evidence or through submission at case management hearing about the protracted nature of the proceedings and the toll it has taken on them and is taking on them. However, I find that the reason for the delay is their lies and their deceit. I consider that they need to take responsibility for the impact of their actions. They have only themselves to blame.

No one reading this judgment should consider that the ends justified the means. No one reading this judgment should presume that on a similar set of facts a court in a future case will grant an adoption order. This judgment should be read as a cautionary tale of what can go wrong when strangers who meet through social media to bring a child into this world through surrogacy and when one or more of the parties take risks around the circumstances of conception. As Jackson J (as he then was) said in M, F and H (above): “… participants in informal arrangements have to judge all risks for themselves. They may not be in a good position to do so”. It about how lies and trying to deceive the court solves nothing. Indeed, it about how lies and deceitful acts prolong the legal process and cause, distress, anxiety and uncertainty for all concerned. It is also about the use of Peace of Mind DNA reports in court proceedings. That is not their intended purpose. The sample taken for a Peace of Mind Report is not observed and thus the person from whom it is taken cannot be verified. It is thus a process open to abuse by those who seek to deceive.

The Guardian in her closing submissions asks that they, and the other parties, should be given time to consider whether this judgment should be published. I agree. I also consider that all parties should be given time to make such further submissions as they may wish about whether I should notify the HFEA that the fertility clinic in this case was deceived by Mr P and Ms T. I will direct that all parties should have 14 days to make any written submissions that they wish in relation to either or both issues. I will decide those issues on the papers unless any party asks the court to hear oral argument.

That is my judgment.