FWF (Foreign Surrogacy: Consent and Payments), Re [2025] EWFC 504

Case No CM25P70131[2025] EWFC 504
IN THE FAMILY COURT
Venue Sitting at the Royal Courts of Justice
1st Mezzanine
Queen's Building
Venue Royal Courts of JusticeDate Thursday, 7 August 2025
Strand
London
WC2A 2LL
Before
MRS JUSTICE THEIS
Between
Applicant FatherApplicant
IN THE MATTER OF THE HUMAN FERTILISATION
AND EMBRYOLOGY ACT 2008
AND IN THE MATTER OF FWF
MR T WILSON (instructed by Irwin Mitchell LLP) appeared on behalf of the Applicant Father. Both counsel and solicitors acted pro bono.
The Respondent did not appear and was not represented
JUDGMENT
(Approved)
Digital Transcription by Epiq Europe Ltd,
Lower Ground, 46 Chancery Lane, London WC2A 1JE
Web: www.epiqglobal.com/en-gb/Email: civil@epiqglobal.co.uk
(Official Shorthand Writers to the Court)
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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Introduction

[1]I am going to give this ex tempore judgment dealing with PCF’s application for a parental order in relation to FWF, who is now 10 months of age.[2]The reason why I am giving the decision today is because there has already been some delay in concluding this case. I am able to give this judgment because of the high quality of pro bono representation PCF has had the benefit of. The court is enormously grateful to Mr Wilson, counsel, and his solicitors, Mr Halliday and Mr Moreton, regarding the assistance they have given to PCF following the hearing before me on 13 June 2025. Mr Wilson will recognise much of what is in the judgment from his comprehensive position statement, which sets out with great clarity the matters the court needs to consider in this difficult case.[3]The court has had the opportunity to be able to consider the bundle of documents, in particular the three witness statements signed by PCF.[4]The gestational surrogate, EM, the respondent to these proceedings, is not present. She has not had notice of these proceedings. One of the matters that I am going to have to consider is whether any further steps should be taken to make contact with her, not only to give her notice of the proceedings but also to consider whether any further steps should be taken to secure her consent to this court making a parental order. EM is an Azerbaijani citizen. Her whereabouts are currently unknown. The last time PCF saw her was in October 2023 at the hospital in Turkish Republic of Northern Cyprus (“TRNC”), he has not seen her or had any contact with her directly or indirectly since then.

Background

[5]PCF described in his statement his longstanding wish to become a parent. He thought that would not be possible, then discovered it was and made enquiries to be able to see how that could be achieved. Following those enquiries, he engaged the Miracle Baby Surrogacy (“the Agency”) which is based in the TRNC. He engaged with that Agency following initial tests in this jurisdiction. He flew out to visit the Agency in November 2023, underwent the necessary procedures, selected an egg donor and was then informed through the Agency that EM had been selected by the Agency as the gestational surrogate to carry the child. The parties entered into a surrogacy arrangement in March 2024. The embryo transfer took place the following day. PCF was kept updated during the pregnancy. He did not meet EM at that time.[6]PCF was contacted by the Agency in late September 2024 to say that EM’s waters had broken and they were going to undertake an emergency C-section. FWF was born nine weeks premature. PCF got on the first plane to TRNC. FWF was born during the journey and PCF was able to meet FWF for the first time the day after he arrived in the TNRC.[7]As a result of his prematurity, FWF was in the neonatal intensive care unit for a period of time before being able to be transferred to a government hospital. PCF was visiting him every day. FWF was unfortunately the subject of an incident in that hospital where it appears from the information the court has, that he may have been poisoned by medical staff whilst at the hospital. Fortunately, it did not cause any lasting damage to him. FWF was discharged from hospital into PCF’s care in November 2024. Following the granting of an emergency travel document, they travelled to the family home here in December 2024 and have remained living here since then.[8]These proceedings were commenced by the C51 application dated 23 January 2025. Initial directions were made on the papers, providing for a statement to be filed, for a parental order reporter to be allocated and a report prepared. The parental order reporter, Ms Parsons, has prepared two reports dated 9 June and 4 August 2025. The matter was listed before me on 13 June 2025 as a directions and/or final hearing.[9]As a result of issues raised by the court at that hearing, the matter was adjourned until today with further directions being made. After that hearing, PCF had the benefit of Mr Halliday, Mr Moreton and Mr Wilson agreeing to take on the case pro bono. With their support, PCF filed two extra statements and the directions made on 13 June 2025 have been complied with.[10]A child arrangements order was made on 13 June 2025 so PCF had parental responsibility in relation to FWF. At this hearing Mr Wilson submits the court can now be satisfied the relevant criteria under section 54 of the Human Fertilisation and Embryology Act 2008 are met. If I am satisfied about that, Ms Parsons in her report supports the court making a parental order setting out the very strong welfare considerations that support that order being made.

Criteria under section 54 Human Fertilisation and Embryology Act 2008 (HFEA 2008)

[11]A number of the seven relevant criteria under section 54, I can deal with relatively shortly before I turn to consider the question of consent and payment, which will take a little bit more time.[12]First, the court needs to be satisfied of the biological connection between PCF and FWF (s54A(1)). There a number of documents ranging from the laboratory test documents dated 18 December 2023, the agreement between the parties on 12 March 2024, evidence in relation to the embryo transfer that took place on 13 March 2024 and the letter from the hospital dated 27 September 2024 confirming FWF’s birth, and finally, the birth certificate the court has. Through the combination of all those documents, I am satisfied there is the biological connection between PCF and FWF.[13]Second, the application should be issued within six months of FWF’s birth (s54A(2)). It was. The C51 is dated 23 January 2025.[14]Third, that FWF had his home with PCF at the time when the application was issued in January and at the time when the court is considering making a parental order (s54A(3)(a)). It is clear from the history I have set out that FWF has had his home with PCF since November 2024. PCF was born here, this is his domicile of origin (s53A(3)(b)).[15]Fourth, I am satisfied satisfied PCF is over the age of 18 (s54A(4)).[16]Turning to the issue of consent (s54A(5)), the position is there are some documents signed by EM on 7 October 2024 including what purports to be a Form A101A consent signed on that day even though it is undated. These documents are signed in English (not EM’s first language) and are signed within the six week period the statute requires for the consent to be able to be relied upon. As has been said in many cases, the question of consent is a pillar of the legal structure in relation to these applications and the relevant section is very clear that for any consent to be valid and effective it needs to be given more than six weeks after the child’s birth.[17]What is said by Mr Wilson on behalf of PCF is that when the court looks at the detail of the information the court does have, together with the steps that have been taken, the court can be satisfied that no further steps can or should be taken to be able to locate EM. As a result, the court can determine that she cannot reasonably be found (s54A(5))). He founds that submission evidentially in a number of ways. The surrogacy agreement dated 12 March 2024 sets out the details in relation to the agreement that was reached between the parties. In the various parts of the agreement he has taken the court to, it is clear, even though the court only had that document in English, it provides at paragraph12.1 to12.2 that EM confirms and acknowledges that the agreement had been presented to her in her first language (English is not her first language) before entering into the same and that she had taken independent legal advice on the contents of this agreement and its effects. The information the court does have through PCF’s contact with EM is that she does not speak English because they had to use Google translate when they did speak. As a result there remains doubt, as there is not a translated copy of the agreement, as to the extent of the support that was given to her when this agreement was signed.[18]Turning to the agreement it sets out a number of matters. It confirms that her agreement is to a number of matters, including that the arrangement following the child’s birth is that she will sign the necessary documents that need to be signed. That aligns with the documents that were signed on 7 October 2024. The agreement goes on to say that she is obliged no more than three days after the delivery to sign all necessary documents set by the TRNC and the United Kingdom legislation for further registration of the child to the United Kingdom residence of the intended parent. There are a number of other references in the agreement to her needing to sign documents necessary to be able to secure the child’s return to the United Kingdom.[19]In relation to payment of expenses or compensation, paragraph 5 of the agreement reads as follows:
“The monthly allowance to the surrogate mother during the period of pregnancy will be paid by the clinic according to an independent protocol. The surrogate mother hereby declares that she has signed a separate agreement with the clinic in which all the payments to which she is entitled in connection with the surrogate procedure were arranged.”
[20]The agreement contains numerous other references to the position in relation to payments. For example, at paragraph 2.1, PCF undertook:
“To pay the surrogate mother compensation with the aim to provide necessary conditions for carrying and delivering a child.”
EM declared in the agreement:
“That she will get the payments duly according to the fee schedule of the Hospital birth clinic.”
[21]It is accepted in the agreement by EM that the clinic is obliged to pay her a sum of money which will be agreed with an independent protocol between the clinic and the surrogate. This monthly fee covers the entire expenses of the surrogate for necessary food during the pregnancy, clothes, vitamins, travel expenses between cities and living. The surrogate has no right to demand any amount from the intended parent.[22]Finally, in relation to payment, the agreement records:
“That the clinic shall in the case of birth and delivery of a live child by the surrogate mother compensate the surrogate mother the amount of money which will be agreed with an independent protocol between the clinic and the surrogate mother.”
[23]At the start of the agreement, the clinic is referred to as being the Hospital birth clinic but in all the wider information that the court has, it seems that the lead taken in relation to the arrangements with the surrogate, in particular in relation to payment, was undertaken by the Agency.[24]In terms of communication during the pregnancy, at paragraph 4.7(1)(0) of the agreement, it sets out that the arrangements were that EM was obliged to maintain contact with the intended parent using all available means of communication, but that had to be via a clinic representative and there was no arrangement put in place for there to be independent communication between PCF and the surrogate.[25]On the same day, the parties signed an appendix to the surrogacy and childbearing agreement which sets out and concludes that the surrogate mother declares that all financial matters were arranged in the framework of her agreement with the Hospital birth clinic.[26]The details in relation to the payments I will come to in a moment but it is clear from this framework and this structure that PCF was unaware what the precise payments under this agreement were going to be paid to EM although, as I will come to in a moment, following a document signed by EM on 7 October, it is understood that she received a sum of €13,000.[27]Following FWF’s birth on 26 September, EM signed a number of further documents, most of which were witnessed and certified by somebody called BD who is referred to in those documents as a certifying officer. In only one of the documents does he refer to himself as a notary. There is no information before the court as to precisely what a certifying officer is or whether that description has any official role or official title.[28]The documents that were signed on 7 October can be summarised as follows.[29]Firstly, a power of attorney providing power to PCF to leave TRNC with FWF and to sign such documents as may be required in order to do so.[30]Secondly, a formal consent providing:
“With full understanding of what is involved to give up my parental responsibility and custody of FWF to PCF in order for him to apply for a passport for FWF.”
The form also stated:
“I give permission for PCF to obtain a parental order in the United Kingdom.”
[31]Thirdly, a declaration that EM was not married.[32]Fourthly, a form consenting to a number of matters including:
“To give up my parental responsibility and custody of FWF”
And to PCF obtaining a passport for FWF and leaving the TRNC with him.[33]Fifthly, a form confirming that:
“The father shall have sole and exclusive custody of the child and all final decision making authority relating to significant matters and that the mother fully understands that she voluntarily terminates all her parental rights to the above said child.”
[34]The sixth document was another power of attorney consenting to PCF travelling with FWF and the seventh document was a Form 23 document consenting to the making of a parental order.[35]At the same time, PCF has said in his written evidence there was also a document signed, the Form A101A standard form of consent signed by EM ,which was also witnessed by BD and this confirms that EM has sought legal advice. However, the form is undated.[36]In relation to all those forms, they were not given to PCF at the time. He instructs Mr Wilson that they were all given to him by Tanya, one of the representatives from the Agency, about two weeks later. Mr Wilson, on behalf of PCF, accepts that these documents are not capable of evidencing in accordance with section 54 EM’s consent for the purposes of the Act, for two main reasons. Firstly, that there is no corroborative evidence that the documents were translated or interpreted for EM and secondly, the documents were signed on 7 October which is less than six weeks after FWF’s birth.[37]As a result of directions that were made by the court on 13 June, attempts have been made to get further information in relation to EM’s whereabouts. After those documents were signed on 7 October at the Foreign Office in TRNC, there was one further meeting between PCF and EM on 23 October. There is a photograph that records that meeting. Through Tanya, EM was contacted as due to particular restrictions at the hospital at the time, by EM coming to the hospital, it enabled PCF to attend on an extra day when he would not have been able to attend. PCF sets out in his statement that they had limited contact that day with the assistance of Google translate but that is the last time that he saw her or had any contact with her.[38]In his statements PCF has set out the steps that have been taken to contact not only the Agency, Tanya, who was the employee of the Agency with whom PCF had a cordial relationship, BD, the official who witnessed and notarised one of the forms signed by EM on 7 October, the Hospital where FWF was born and EZ who certified the power of attorney signed by EM on 7 October.[39]In addition, there have been hard copy letters that have been sent to BD. They have been signed by him as having received them and he collected them on 29 July, but there has been no response by him. In relation to the hospital, they have been delivered but they have not been signed for.[40]The only response that has been received is a response from the Agency from a representative called RKK. He writes to Mr Moreton, PCF’s solicitorand he states as follows:
“We would like to bring to your attention that PCF has left the island without making final payment to the surrogate as agreed. Despite repeated assurances, the payment remains unsettled leaving the surrogate in a deeply distressing situation both financially and emotionally. It is unacceptable that PCF has not fulfilled his financial obligations, effectively shattering the surrogate’s trust and hopes. We urge PCF to immediately clear the full outstanding amount. Until the payment is completed in full we will not be in a position to provide any further assistance or arrangements on his behalf.”
[41]A follow up email was sent in response to that and nothing further has been received. So the position is that all of those steps have been taken in relation to the various officials that were dealing with this Agency in TRNC.[42]In relation to any consideration about contacting EM directly, PCF understands that surrogacy arrangements are illegal in Azerbaijan, if she has returned there. This is corroborated by the official UK government guidance to His Majesty’s Passport Office promulgated in March 2025. As such, it is submitted by Mr Wilson that it would be inappropriate to pursue any efforts to locate EM through official Azerbaijani channels and Ms Parsons, the parental order reporter states these factors could make obtaining updated consent even more challenging.[43]Mr Wilson confirmed that PCF has looked on the various social media channels such as Facebook to see whether EM has any presence on that, with no success. So, it is against this background that Mr Wilson, on behalf of PCF, invites the court to conclude that EM cannot be found for the purposes of section 54A(6) and, in effect, dispense with service of this application and also not take any further steps in relation to securing information about her consent.[44]He has very helpfully referred to the relevant authorities in Re D and L [2013] 2FLR 275 at 24 where Baker J, as he then was, set out that:
“It is a very important element of the surrogacy law in this country that a parental order should normally only be made with the consent of the woman who carried and gave birth to the child. The reasons for this provision are obvious. A surrogate mother is not merely a cipher. She plays the most important role in bringing the child into the world She is a ‘natural parent’ of the child.”
He went on to identify three matters for the court to consider when it is faced with a situation such as here:
“First … it is only when all reasonable steps have been taken to locate her without success that a court is likely to dispense with the need for valid consent. Half-hearted or token attempts to find the surrogate will not be enough. Secondly, although a consent given before the expiry of six weeks after birth is not valid for the purposes of section 54, the court is entitled to take into account evidence that the woman did give consent at earlier times to giving up the baby. The weight attached to such earlier consent is, however, likely to be limited. The courts must be careful not to use such evidence to undermine the legal requirement that a consent is only valid if given after six weeks. Thirdly … the child’s welfare is now the paramount consideration when the court is ‘coming to a decision’ in relation to the making of a parental order … This includes decisions about whether to make an order without the consent of the woman who gave birth in circumstances in which she cannot be found or is incapable of giving consent. It would, however, be wrong to utilise this provision as a means of avoiding the need to take all reasonable steps to attain the woman’s consent.”
[45]This issue was recently considered by Knowles J in the case EH and XY [2023] EWHC 3196 where at paragraph 27, she also considered that the court should be concerned that proportionality must also be a relevant matter when considering what, if any, further steps should be taken to attempt to locate a surrogate who cannot be found.[46]Mr Wilson submits the steps outlined in PCF’s second and third witness statements and the exhibits attached to them demonstrate that all reasonable and proportionate steps have been taken to locate her. It would be inappropriate and potentially place her at real risk for enquiries to be made of the Azerbaijani government in an attempt to locate her and the hospital in which FWF was born has not responded to attempts to obtain information about her contact information. None of the individuals involved in the signing of the forms has responded to the various and creative attempts to obtain information about EM’s contact information and the Agency has responded to correspondence from those representing PCF it has refused to co-operate for reasons which appear to be commercial.[47]It is not clear, he submits, that the court needs to join FWF as a party to these proceedings because the reality is that it would give and shed no further light in relation to this important issue. As a result of that, bearing in mind the legal framework, PCF invites the court to conclude that for the purposes of the relevant provision in section 54, EM cannot be found.[48]In relation to that requirement, I am satisfied that all reasonable and proportionate steps have been taken. It is clear from the information the court has that there are no other steps that will or have any reasonable prospect of producing any more information. There has been a wall of silence by those who were so keen to engage with and support PCF during the surrogacy and the build up to the agreement being entered into. They have now melted away in providing assisting to PCF and this court to be able to have information that would enable it to contact EM to consider the question of consent. It is very unfortunate that these organisations have not co-operated with these perfectly reasonable enquiries that have been made. As regards the Agency, they have chosen to respond back raising issues in relation to financial matters which have not previously been raised, which raises a real question mark over why after such a delay, and they have chosen not to respond any further.[49]The final matter in relation to the section 54 criteria is the evidence about payments that have been made to the Agency. As PCF sets out in his evidence, the standard package agreement that he entered into with the agency which is supported by the attachment to Ms Parsons’ first parental order report is that the agreement was for staged payments totalling €50,000. EM was due to receive €13,000, although that is not specified as a fixed sum in the agreement that was entered into between them because it was said to be dealt with by way of an independent protocol. EM has signed a document on 7 October confirming that she had received that sum.[50]All the payments in relation to the surrogacy arrangement in relation to EM were to be conducted and arranged by the clinic, for which I read probably the Agency, to pay her on a monthly basis. Although it is specified in part of the agreement that that was to be for expenses, elsewhere in the agreement it is recorded that the monthly fee covers the entire expenses of the surrogate mother and there is then a reference to the money being to compensate the surrogate mother. EM has confirmed on 7 October that she has received that sum.[51]The approach in relation to payments that have been made under section 54 other than for expenses reasonably incurred is that the court needs to consider, as was set out by Hedley J in Re X and Y [2009] 1 FLR 733, that in relation to the public policy issues, the cases suggest, and I agree, that the court poses itself three questions. Was the sum paid disproportionate to reasonable expenses? Secondly, were the applicants acting in good faith and without moral taint in their dealings with the surrogate mother? Thirdly, were the applicants party to any attempt to defraud the authorities?[52]In relation to public policy considerations in Re S [2009] EWHC 2977 (Fam), Hedley J set out the framework for that and sets out three matters.(1) In relation to public policy, first to ensure that commercial surrogacy agreements are not used to circumvent child care laws in this country so as to result in the approval or arrangements in favour of people who would not have been approved as parents under any set of existing arrangements in this country.(2) The court should be astute not to be involved in anything that looks like a simple payment for effectively buying children overseas. That has been ruled out in this country and the court should not be party to any arrangements which effectively allow that.(3) The court should be astute to ensure that sums of money which might look quite modest in themselves are not in fact of such substance that they overbear the will of the surrogate.[53]In Re L [2011] in relation to public policy, Hedley J held that the child’s welfare interests are paramount and that it will only be in the clearest case of the abuse of public policy that the court will be able to withhold an order, if otherwise welfare considerations support its making.[54]The court has limited information about the sum that was paid to EM. There is the document signed by her in which she received the sum of €13,000. That would be consistent with payments being provided for in general terms in the agreement that was signed on 12 March. But it does, on the information that the court has, it is for more than expenses reasonably incurred. Although the court has limited or no information about that, there is reference to the money in the agreement being to compensate the surrogate mother.[55]Turning to the considerations that the court should take into account, it is apparent from the information the court has and the wider evidence, there was nothing to suggest that the applicant acted other than in good faith. There was also nothing to suggest, because of the surrogate’s co-operation and attendance on 7 October and her additional co-operation and attendance on 23 October, to suggest that this was other than an arm’s length surrogacy arrangement which she entered into freely and with full understanding in relation to what was involved. There is no suggestion that PCF has attempted to defraud or get round the authorities.[56]Taking into account those considerations, I am satisfied that this payment was made to EM and satisfied that it was for more than expenses reasonably incurred and I am satisfied, in the particular circumstances of this case, that this court should authorise any element of those payments other than for expenses reasonably incurred.[57]PCF has met all the relevant criteria under section 54. I must now turn to consider the issues in relation to FWF’s welfare.[58]The court has been greatly assisted by the two reports from Ms Parsons dated 9 June and 4 August. She raises and deals with the matters that she found out about when undertaking the safeguarding checks and that detailed in the enhanced safeguarding checks.[59]The previous convictions of PCF are set out in the documents produced by Ms Parsons and are responded to comprehensively by PCF in his second statement at paragraph 19. He deals with each of the convictions that are there between 2012 and 2016, setting out the circumstances that there were at the time. There is no suggestion that since 2016 that there has been any further matters that have been brought to the attention of the authorities by way of safeguarding, either by way of conviction or any other matters that the court should be aware of.[60]Ms Parsons has considered the evidence and she has noted in her report that these incidents have occurred at least nine or more years before the birth of FWF and in her view, PCF now has “evident stability in his life” which she has been able to observe on the two occasions that she has met him. Through her own assessment, Ms Parsons has assessed not only that FWF is not at risk of harm in PCF’s care but that “his holistic needs are being met” by PCF. Consequently on welfare grounds, she supports the making of the parental order and does not consider there needs to be any further investigation in relation to those matters.[61]It is quite clear that FWF’s lived reality from birth has been that PCF has been his day to day parent. He was conceived as a much wanted and longed for child, as set out and described by PCF in his written evidence. FWF had a troubled start into his life by the incident that occurred in the hospital. PCF has been a constant parental figure since birth and his commitment to parent FWF, notwithstanding any potential future medical complications as a result of his premature birth and the incident in the hospital has been assessed by Ms Parsons as being without doubt.[62]In her report, she provided a number of positive observations of FWF being settled and content in PCF’s care. She has reported that FWF was observed to engage positively with PCF and that PCF was observed acting lovingly towards FWF. She has further observed that FWF has appeared to be contented, well cared for and an adored child. His needs will be well met by the applicant. She is satisfied that PCF would be able to meet FWF’s emotional, physical and educational needs.[63]Subject to the court being satisfied that the section 54 criteria are met, Ms Parsons makes a very clear recommendation to the court that a parental order will secure FWF’s lifelong welfare needs by giving the security lifelong that being PCF’s legal child and FWF having PCF as his legal parent will provide.[64]I have no hesitation in accepting that recommendation. It is quite clear that by making a parental order in this case, it will secure FWF’s lifelong welfare needs as it will provide that lifelong security and stability that will meet those needs.[65]I will make a parental order. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: civil@epiqglobal.co.uk This transcript has been approved by the Judge