Will the Family Court grant a parental order to intended parents where the surrogate’s identity is anonymous and unknown?
In a recent case, Re He [2025] EWHC 220 (Fam), Sir Andrew MacFarlane, President of the Family Division, reviewed an anonymous surrogacy arrangement.
Mr. and Mrs. H, a married couple of Nigerian descent, applied for a parental order for their nearly two-year-old daughter, “A”, born through surrogacy at a clinic in Nigeria. The court had limited documentation, but DNA tests confirmed that Mr. H was A’s biological father, with a surrogate in Nigeria presumed to be A’s biological mother.
Before granting a parental order, the court must ensure certain conditions set out in Section 54 of the Human Fertilisation and Embryology Act 2008 (“HFEA 2008”) are met. These include:-
- The child must be carried by a woman who is not one of the intended parents and must be biological related to at least one of the application, if a couple is applying;
- If an application is being made by two people, the applicants must be married, in a civil partnership or in an enduring family relationship and, and both must be over 18;
- The application must be made within 6 months of the child’s birth (but not before 6 weeks);
- The child must live with the intended parent(s);
- At least one intended parent must be domiciled in the UK;
- The surrogate (and spouse if applicable) must consent to the parental order. This consent must be given freely given on an unconditional basis, with a full understanding of the legal implications. The consent can be given no earlier than 6 weeks after the birth of the child;
However, the court does not require the surrogate’s consent if she cannot be located or is incapable of giving an agreement. - Only the reasonable expenses related to the surrogacy are permitted to be paid by the intended parent(s) and evidence is required. Commercial surrogacy arrangement is not permitted.
The main issue in this case was how to proceed when the surrogate’s identity cannot be confirmed or she cannot be found.
The facts of the case
Mr. and Mrs. H have been married for about 10 years. They met in the UK, where both worked—Mr. H as a senior social worker and Mrs. H as a support worker. In 2022, they travelled to a clinic in Nigeria from the UK to pursue a surrogacy arrangement, signing an agreement and completing the necessary paperwork with the Nigerian court. The surrogate remained completely anonymous throughout the process; the intended parents had no information about her identity or whether she was married. During remote appointments for scans, the surrogate kept her face covered to protect her privacy and to shield her identity.
Their daughter, A, was born in early 2023 after a successful embryo transfer using Mr. H’s sperm in mid-2022. Mr. and Mrs. H were present for her birth, and she has lived with them ever since, as they are her sole caregivers. The Judge observed that A is “entirely at one” with them.
It is unclear from the judgement,but it seems unlikely that Mr. and Mrs. H sought legal advice in the UK before pursuing the surrogacy arrangement in Nigeria.
The legal framework
The Judge carefully reviewed the conditions outlined in Section 54 of the HFEA 2008, as above. He was satisfied with conditions (1) to (5) and was willing retrospectively approve the payment of £4000 to the clinic in Nigeria, under condition (7), although he noted it was not “altogether satisfactory”.
Regarding the main issue of the surrogate’s identity, it became clear from the evidence provided by Mr. and Mrs. H that they could not provide any reliable documentation confirming that the identity document supposedly from the surrogate matched the person who entered into the surrogacy arrangement or gave birth to A.
Mr. and Mrs. H explained to the Parental Order Reporter that it was their choice to keep the surrogate anonymous and that they never knew her true identity. When asked by the Judge to provide a letter explaining the reason for the surrogate’s anonymity, they stated that having an anonymous surrogate would “remove all the problems people face” and that they didn’t want any “unnecessary involvement or attachment,” simply wishing to sign the contract without feeling any obligation.
Although A was thriving under Mr. and Mrs. H’s care, the Parental Order Reporter declined to recommend granting a parental order after multiple hearings. Mr. and Mrs. H provided various documents, but these were not enough to confirm the surrogate’s identity, prove she consented to the parental order before and after A’s birth, or show that the surrogate received any payment.
At the latest hearing on 24 January 2025, Mr. and Mrs. H presented a surrogacy agreement prepared by Nigerian lawyers, signed by them and the clinic, with the initials of the alleged surrogate. The document suggested the surrogate was unmarried and it was dated one week before the first payment was said to have been made. However, the evidence failed to clarify whether the surrogate received any payment.
The Parental Order Reporter reviewed all the evidence and considered what was in the best interest for A in the backdrop of the criteria required to be followed before recommending a Parental Order in favour of Mr. and Mrs. H. She noted that A was benefiting from being raised by Mr. and Mrs. H and acknowledged that the international nature of the surrogacy in Nigeria meant documentation might be different from what is typically presented in other international cases. Ultimately, the Reporter supported granting a Parental Order, as it was in A’s best interests. She took a balanced approach, recognising that if the order was not granted, Mrs. H would have no legal parental responsibility for A and would have no parental status.
Based on the evidence and expert reports, the Court was satisfied that Mr. and Mrs. H entered into a surrogacy arrangement with a fertility clinic in Nigeria, and that Mr. H was A’s genetic father. The surrogate mother, known only as ‘O.S.’, was likely the individual identified in the agreement, and her involvement in the case was considered unlikely to the extent that she “cannot be found”. With all statutory requirements met, the Court had jurisdiction to grant a parental order, which was in A’s best interests, ensuring that Mr. and Mrs. H were legally recognised as her parents.
The outcome of the case
Before granting a parental order, the Court must ensure that the individual requirements outlined in HFEA 2008, s 54 are met, especially in cases involving foreign elements. Each element is of importance.
In the case of Nigeria, the UK has imposed special restrictions on adoptions due to concerns such as difficulties verifying children’s backgrounds, unreliable documentation, corruption, child trafficking, and weak adoption checks by Nigerian authorities. While there are no specific statutory restrictions on surrogacy from Nigeria, concerns about unreliable documentation and potential child trafficking require caution in parental order applications involving Nigerian surrogacy and any intended parent considering a surrogacy arrangement internationally should consider seeking legal advice early on.
Additionally, the anonymity of the surrogate mother in this case raised strong doubts about her consent and the legitimacy of the arrangement, making it difficult for the court to approve the application which it only did so after multiple hearings and requests for information and evidence from Mr. and Mrs. H. It is noteworthy that whilst Mr. and Mrs. H opted for an anonymous surrogacy, their decision has, in reality, created significant challenges in presenting their application. This could have been avoided if they took active steps to become aware of the legal framework concerning parental orders in England and Wales since they would be returning A to the UK to live with them permanently.
This case serves as a stark warning to future applicants to avoid anonymous surrogacy arrangements to prevent similar complications and highlights the need to obtain legal specialist advice early on if you are considering surrogacy as an option to start or add to your family.
How Moore Barlow can help
It is vital to obtain legal advice if you are considering surrogacy to start or expand your family and to ensure you are recognised as the legal parents of your child in England and Wales. Our surrogacy solicitors have the skill and expertise to navigate the highly complex legal landscape of surrogacy. With a deep and compassionate understanding of the legal issues, our team is equipped to provide expert advice and guidance throughout the entire process, with the utmost sensitivity and discretion.
