Another Cautionary Tale of the Importance of Taking Legal Advice Before Entering into a Surrogacy Arrangement

Written by Eleanor Tanner

The Court in England and Wales has recently seen a flurry of international surrogacy cases involving various complicating factors when it comes to considering whether a parental order should be made. The recent judgment of Mr W v Ms S and another [2025] EWFC 85 is a reminder of the care and forethought required of intended parents before embarking on their surrogacy journey.

Surrogacy agreements are not legally recognised in the UK, even if they have been legally and validly entered into abroad in a country where such agreements are legally recognised and enforceable. For intended parents to be granted legal status as their baby’s parents, and for the rights of the surrogate parent’s legal rights to be revoked, intended parents must obtain a parental order from the Court.

In the recent case of Re Z (Unlawful Foreign Surrogacy: Adoption) [2025] EWHC 339 (Fam), the Court highlighted the risk that intended parents taking this path to parenthood without a full appreciation for the UK law governing their parental status could cause their child to be left “permanently Stateless and legally parent-less.”

Per Mrs Justice Theis DBE’s earlier judgment in Re Z (a child) [2024] EWFC 304: “The need to take expert legal advice before entering into these arrangements cannot be emphasised strongly enough.”

In a new April 2025 judgment in the case of Mr W and Ms S, the Court has again highlighted the extreme importance of taking expert legal advice before starting out with a surrogacy arrangement. All individuals considering a surrogacy arrangement should, the Court says, take independent legal advice well in advance of starting the process.

The case of Mr W and Ms S concerned a surrogacy arrangement managed by a clinic in the Turkish Republic of Northern Cyprus (TRNC). In this case, an issue arose about whether the surrogate had given valid consent to the making of a parental order.

Mr W had engaged the services of a clinic in the TRNC, which matched him with the surrogate, Ms S. For the Court in the UK to grant a parental order, the surrogate must give their consent. In the case of Mr W and Ms S, the surrogate’s original consent to the making of the order did not meet the relevant criteria because she gave consent too early for the Court to be able to legally recognise it.

In addition, following Ms S’s original consent being given, Mr W had been reported to the Police for an alleged sexual assault, raising safeguarding concerns (the investigation was later dropped with no further action taken). The Court had to make determinations both in relation to the baby’s welfare in Mr W’s care (ultimately finding, on an assessment of the evidence from Mr W, the Police and other professionals, that Mr W did not pose a risk to the baby’s welfare), as well as in relation to ensuring Ms S’s consent was valid and was given will full knowledge of the allegations against Mr W.

Issues arose when the clinic in TRNC became uncommunicative and caused delays in establishing contact with Ms S so that the Court could properly assess her consent to the order being made. In the course of the proceedings, the clinic’s lawyer provided evidence that Ms S had been made aware of the allegations and that during a meeting, she consented to the parental order being made. Eventually, direct contact was made with Ms S at which point it became clear that the clinic had not made Ms S aware of the allegations and had not had a meeting with her to discuss whether she consented to the making of the order, casting doubt on the evidence previously given by the clinic’s lawyer.

Ultimately, following months of delays during which further evidence was gathered, the Court found that there was sufficient evidence to conclude that Ms S consented to the parental order being made. A meeting was arranged with the parental order reporter, appointed by the Court, in which Ms S was made aware of the allegations and she confirmed that she still consented to the parental order on the basis that Mr W had not been found guilty of the alleged offence. Despite Ms S’s consent not being recorded on the specified form or in the usual procedure, the Court was satisfied that she had given valid consent.

The baby in this case was 21 months old by the time the order was made, it having taken nearly two years since their birth for Mr W to be granted legal status as her parent. Mrs Justice Theis DBE stated in her judgment:

“There have been a number of troubling aspects of this case, many of which could have been avoided had the steps I outlined in Re Z been taken in advance of embarking on a surrogacy arrangement. By not doing so, the welfare of the child born as a result of such an arrangement can be put at risk, and the court may not be able to make a parental order which will have long term implications for the intended parents and the child.”

The key considerations referred to by Mrs Justice Theis DBE are a list of early questions intended parents should be contemplating before entering any surrogacy arrangement. These are designed to flag any issues and lay a strong foundational groundwork early, thus minimising the risk of the Court being unable to grant a parental order after the baby is born which could lead to severe safeguarding issues for a baby born of one of these arrangements.

This case represents the most recent of many warnings of the Court, repeating the message that intended parents should take expert legal advice before starting their surrogacy journey, or risk not being granted legal status as parents leaving both their own future and that of their baby in jeopardy.

It is essential for all intended parents and surrogates to take independent, expert legal advice before entering a surrogacy arrangement, whether in the UK or abroad. If you are contemplating a surrogacy arrangement, whether as an intended parent or as a surrogate, contact our surrogacy expert Eleanor Tanner on newbury@kjsmith.co.uk or 01635785100 to arrange a free initial consultation.