The Risks of Anonymous Surrogacy Abroad
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Isabelle James
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The Family law team at Osbornes Law represents clients in international and domestic surrogacy law and adoption.
There is an increasing body of Case Law in which Judges are warning individuals about the risks of embarking on international surrogacy, and not without good reason. Disputes can arise because the intended parents are not considering the legal implications of surrogacy and the complexities of international law .
Recently, a judge issued a clear warning following an anonymous surrogacy which had resulted in immigration issues and anxiety for the intended parents. They had already been through the distress of unsuccessful fertility treatment and a lost pregnancy.
What happened in this case?
The child in B & C v D & H [2025] EWFC 366 was born in March 2024 as a result of a surrogacy arrangement via a fertility clinic in Nigeria. The intended parents (the applicants) did not meet the surrogate and had no information about her identity.
It was also questioned whether she had carried the child, H, as two surrogates were used (only one of whom became pregnant). The clinic did not respond to subsequent enquiries from the applicants or their solicitors concerning the surrogacy arrangement.
The applicants were born in Nigeria but both had acquired British citizenship and lived in the UK for many years. They were in Nigeria for the birth of the child and she had been in their care ever since.
By June 2024, both applicants had returned to the UK with H, who had been granted a certificate of Right of Abode. Also in June, they applied for a parental order under section 54 Human Fertilisation and Embryology Act (HFEA) 2008. A parental order is a transformative order, which transfers legal parentage from the surrogate to the applicants, further giving them parental responsibility for the child.
Consent
A surrogate’s unconditional consent to the marking of a parental order is legally required before the court can make the order. Consent can be dispensed with only very limited circumstances, for example when the court is satisfied the surrogate cannot be found (s54(7)).
In a similar case earlier this year, the President of the Family Division referred to the lack of statutory restrictions on surrogacy cases originating from Nigeria, saying “the need for care as to the reliability of documentation and the potential for the involvement of organised child traffickers underscores the need for caution in parental order applications involving a Nigerian surrogacy” (Re H (Anonymous Surrogacy) [2025] EWHC 220).
He also warned future intended parents generally of the risks of engaging with anonymous surrogates.
In this case, Mrs Justice Theis reiterated the President’s earlier warning and said: “Intended parents should avoid embarking on a surrogacy arrangement where they do not meet, have any knowledge of or means of contacting the surrogate who carries their much wanted child.”
The judge concluded on the evidence that the first of the two anonymous surrogates was, on balance, the gestational carrier; and that she could not be found. The application for a parental order could therefore proceed without securing her consent.
She went on to make a parental order for H. The little girl was thriving, and the children’s Guardian supported the order being made.
How we can help
We understand the desperation many couples go through when seeking to become parents. But it is vital to take a step back before you start your surrogacy journey and get expert legal advice before taking further steps – especially if you’re considering a foreign clinic.
Speak to our specialist lawyers in domestic and international surrogacy for expert legal advice. Contact us by:
- Filling in our online enquiry form; or
- Calling us on 020 7485 8811
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