Surrogacy Law for Older Parents
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Isabelle James
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International surrogacy, older parents and future implications for a child
At Osbornes Law, the family team specialises in both international and domestic surrogacy law, adoption and securing parental orders.
Most individuals considering international surrogacy, plan carefully before embarking on their parenthood journey. A recent court decision underscores the importance of thorough planning for older intended parents, given the implications for the child’s welfare and longer-term future.
Advanced ages
In Mr K & Anor v Mr Z & Anor [2025] EWHC 927, the applicants were 72 years old. Mrs K had suffered many miscarriages before having their son in 1993 after several rounds of IVF. He was their only child and sadly died of cancer just before turning 27.
The couple were now seeking a parental order for a baby born by surrogate in January 2024 following a gestational carrier agreement executed in California. Mr K’s sperm was used and they returned to the UK with the baby just a few weeks after the birth.
Despite their advanced ages, the Family Court granted them a parental order. They had satisfied the statutory criteria under section 54 of the Human Fertilisation and Embryology Act 2008. Importantly, the Court had to consider the child’s welfare throughout his life before making the order. It was in this context that the Judge expressly considered the applicants’ ages.
Future arrangements
The Judge, Mrs Justice Gwynneth Knowles, expressed her concerns about the applicants’ ages and the direct implications for their child’s welfare. She pointed out that although Mr and Mrs K were both healthy at the moment, it was “foreseeable that their health will decline and that one or both of them will become seriously incapacitated or die” before their son reaches 18.
The child would likely experience loss and grief at a relatively early age. “That experience may strike (him) at a time in his childhood when he is ill-prepared to understand or come to terms with it, upending his daily life and placing him in the care of adults to whom he is not emotionally close.”
This reality had a direct impact on the child’s welfare, both immediately and in the foreseeable future. The court therefore had to carefully examine any arrangements the applicants had made to protect him in the event of their death or incapacity.
The Judge noted that while the couple had clearly planned their surrogacy journey, by the time their application was heard, they had not given the same attention to future care arrangements, in the event of their death or incapacity.
It was only after the Judge had expressed her concerns that appropriate Wills, Lasting Powers of Attorney, and financial arrangements for B’s future care were drafted. She pointed out that these should have been addressed much earlier.
Mr and Mrs K had also made arrangements to nominate close friends (a couple now in their early thirties) as prospective special guardians for B, in the event of their incapacity or death. The judge was satisfied that this was appropriate under the circumstances.
What does this mean?
The ruling highlights further important issues for the court when considering applications for parental orders by older individuals:
What steps have been taken by the intended parents regarding:
- estate planning (before and after a parental order is made) in relation of the child’s future welfare?
- future care and financial arrangements for the child in the event of the death of one or both parents?
- future care and financial arrangements for the child in the event of the incapacity of one or both parents?
These factors are also important where an applicant is a single person.
How can we help?
At Osbornes Law, we understand that every surrogacy and adoption journey is deeply personal and often complex, especially when navigating international arrangements or later-life parenthood. Our award-winning family team brings not only legal expertise but also compassion and foresight to every case. Whether you’re planning for the future or responding to unexpected challenges, we’re here to ensure your family is protected every step of the way.
Contact us
For expert advice from lawyers who specialise in domestic and international surrogacy, as well as special guardianship, get in touch with our family lawyers. We also have a specialist Private Client department who can advise on Wills and Lasting Powers of Attorney. Contact us by:
- Filling in our online enquiry form; or
- Calling us on 020 7485 8811
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