Q (Surrogacy: Legal Advice), Re [2026] EWHC 1538 (Fam)

[2026] EWHC 1538 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18 June 2026
Before
MRS JUSTICE KNOWLES
Between
Mr AApplicantsMs XRespondent
Re Q (Surrogacy: Legal Advice)
Joseph Landman (instructed by Mark Gilmartin and Paige Franks of JMW Solicitors LLP) for Applicant for The Respondent did not appear and was not representedHearing Hearing date: 27 February 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 18 June 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MRS JUSTICE KNOWLESThis judgment was delivered in private [and a reporting restrictions order OR transparency order is in force]. 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 and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.

Introduction

[1]By an application made in February 2024, Mr A invited the court to make a parental order in respect of a little girl called Q who was born in November 2023 and is thus two years old. Q was born in Kyrgyzstan following a gestational carrier agreement executed in Northern Cyprus. Pursuant to that agreement, an embryo was created using Mr A’s sperm and a donor egg. Ms X was the gestational surrogate and is a respondent to these proceedings. Ms X has consented to the making of a parental order in favour of Mr A and has played no active role in the legal proceedings.[2]At the conclusion of the hearing on 27 February 2026, I told Mr A that I would make a parental order in respect of Q in his favour and give my reasons for so doing at a later date. Pressure of work has meant that the preparation of this judgment has been somewhat delayed.[3]This judgment raises once more the real legal and practical difficulties with foreign surrogacy arrangements.[4]I make some further observations on these matters later in my judgment.

Background

[5]What follows is a summary of the relevant background.[6]Mr A is now in his early fifties and was born in Serbia. He moved to the UK in 1999 and has enjoyed a successful career. He became a British citizen in 2010. He is a single man but had been interested in becoming a parent for some time. In 2022, following a medical check-up confirming his good health, Mr A decided to embark upon parenthood through surrogacy.[7]Mr A explored surrogacy in a variety of jurisdictions such as the US, Guatemala and the Ukraine which he understood were open to single men. He made his enquiries without the benefit of independent legal advice and ultimately chose a clinic in Northern Cyprus on the basis of cost and comparative political and social stability. He chose a clinic – Dogus IVF – on the recommendation of his sister (his sister is a surgeon) and was reassured because several of his sister’s colleagues had used this clinic for fertility treatment. His early contact with the clinic appeared professional and focused on safe medical outcomes to surrogacy. The clinic suggested an agency – Full Success Medical Consulting - to find an egg donor and match Mr A with a surrogate. Both the clinic and the agency are located in the same building.[8]At this point, Mr A knew that the agency said it had a legal team upon which it relied “for understanding the laws in foreign countries” and reference was made to “our lawyer” in the clinic’s initial email to Mr A. At a later stage, Mr A said that the agency told him that the birth “could be in any country regardless as the surrogacy was based on Cypriot laws”. He understood that(a) it was legal in Northern Cyprus for single men to become surrogate parents; and(b) that the child could be born anywhere in the world and that the domestic position of Northern Cypriot law would be recognised. Interestingly, the agency stated that it was best practice for surrogates not to give birth in their country of origin, not apparently because surrogacy was unlawful but because it protected a surrogate from any cultural taboo.[9]An egg donor was identified and Mr A was matched with a surrogate. In late 2022, the surrogate became pregnant with twin boys following egg implantation. Sadly, the pregnancy did not progress to full term and, owing to subsequent health concerns, it was not appropriate for that surrogate to become pregnant again with any embryos linked to Mr A.[10]In February 2023, Mr A was matched with Ms X. She is from Kyrgyzstan but was working in Dubai. She had two children of her own and was unmarried. As with the first surrogate, the agency managed contact and communication with the surrogate. A surrogacy agreement was signed in late March 2023 shortly before embryo transfer and it was stated to be “guided by the current legislation of the Turkish Republic of Northern Cyprus”. In April 2023, the agency confirmed that Ms X – then having returned to Dubai - was pregnant with a single embryo. A month later, Mr A was told that Ms X would return to Kyrgyzstan and he was content to be guided by the agency’s advice about where Ms X should live during the pregnancy. Other than this contact, Mr A was not involved with any further discussion about where Ms X should live though he was involved in planning where the birth would take place.[11]The agency adopted a broad brush approach to countries which were suitable for the birth to take place and Mr A was told that this could be in any country as the surrogacy was based on Northern Cypriot law. Thus, Greece was explored as a possible country of birth but discarded as an option when visa difficulties could not be resolved. In October 2023, the agency advised that Moldova was a suitable jurisdiction as a visa for Ms X was not apparently required. Mr A went to the Serbian Embassy in Bucharest who informed him that Moldova had no law on surrogacy. He also explored Serbia as an option and spoke to an independent Serbian lawyer who advised against this course. However, the agency reassured Mr A that both Moldova and Serbia were suitable countries in which Ms X could give birth. Thus, the birth was planned to happen in Moldova.[12]Due to complications with the pregnancy, Ms X was unable to fly to Moldova and gave birth in Kyrgyzstan. The agency and the clinic advised that, on their legal advice, the requirements of Kyrgyz law were met. At a much later stage after Q’s birth, Mr A took legal advice in this jurisdiction and was surprised to learn that the surrogacy contract may have been contrary to Kyrgyz law. Mr A flew to Kyrgyzstan and Q was discharged into his care after about a fortnight’s stay in hospital.[13]In December 2023, Mr A applied for a British passport for Q. He and Q remained in Kyrgyzstan for many months as there were significant difficulties in obtaining Q’s passport. Mr A’s passport application was rejected in July 2024 on the basis that insufficient evidence had been provided (including the original IVF documents from the clinic). In August 2024, Mr A and Q travelled to Serbia after Q obtained a Kyrgyzstani passport. Q was cared for by Mr A’s mother after his employer required him to return to work that summer. These delays also meant that the application for a parental order had to be adjourned for a significant period of time until Q was able to travel to this jurisdiction.[14]In December 2024, Mr A made another passport application with the assistance of immigration solicitors and Q’s British passport was finally issued in late March 2025. Q entered the UK in July 2025 after spending the spring with Mr A’s family in Serbia.[15]Q is a little girl in good health who is developing well. According to the report of the Parental Order Reporter, Q is a happy, playful and engaging little girl who has a close and affectionate relationship with her father. Mr A has assistance from his sister in caring for Q and Q has a good relationship with her. The Parental Order Reporter described Q as being clearly cherished by her father and stated that Q’s needs appeared to be met to a high standard by Mr A. As a single applicant of mature years, Mr A has also taken appropriate steps to make arrangements for Q’s care in the event of his incapacity or death.

Procedural History

[16]The application was made in February 2024 and was the subject of standard case management directions in March 2024. A hearing was listed in July 2024 but this had to be adjourned by a court order dated 29 July 2024. A further hearing listed in October 2024 was adjourned as Q had not arrived in this jurisdiction. The court directed that the application for a parental order should be adjourned until Q arrived in the jurisdiction. In September 2025, the matter was restored to court and I made directions on 7 October 2025 appointing a Parental Order Reporter and listing a further directions/final hearing in January 2026. Prior to the January hearing, the Parental Order Reporter produced a report recommending that Q be made the subject of a parental order in favour of Mr A.[17]The application came before me on 14 January 2026. I adjourned the application to 27 February 2026 so that Mr A could file a more detailed witness statement and the results of DNA testing to establish that he was one of Q’s biological parents. Though Mr A had undertaken a DNA test in Kyrgyzstan in July 2024, that provider was not accredited for the purpose of section 20 of the Family Law Reform Act 1969. I also invited Mr Landman to file a detailed skeleton argument.

The Legal Framework: Parental Orders

[18]In this jurisdiction Q’s legal mother is Ms X and her legal father is Mr A. If the court makes a parental order, this will create a lifelong legal parental relationship between Q and Mr A and extinguish any legal relationship that B currently has with Ms X.[19]An application for a parental order made by a single applicant is governed by s. 54A of the HFEA 2008. This provides that the court may make a parental order in respect of a child born through a surrogacy arrangement where(a) such an order meets the child’s welfare needs in accordance with s. 1 of ACA 2002 and(b) the following criteria are satisfied: (1) The child has been conceived artificially and is genetically related to the applicant (s.54A(1)). (2) The intended parent has applied for an order within six months of the child’s birth (s.54A(2)). (3) At the time of the application and the making of the order, the child’s home has been with the applicant and the applicant is domiciled in the UK (s.54A(3)). (4) The intended parent is over 18 years old (s.54A(4)). (5) The surrogate (and her spouse, if applicable) has given her consent to the making of a parental order and that consent has been given freely, unconditionally and with full understanding of what is involved and that consent has been given more than six weeks after the birth of the child (s.54A(5) and s.54A(6)). (6) No money or other benefit (other than reasonable expenses) has been given or received by the applicant in respect of the surrogacy arrangement unless authorised by the court (s.54A(7)). (7) No order relating to Q pursuant to s.54 or s.54A has previously been made (s.54A(8)).[20]The court must also have regard to the welfare checklist set out in s.1(4) of ACA 2002, this checklist (alongside the contents of s. 1 of ACA 2002) having been imported, with minor modifications, into the decision-making process pursuant to s.54A by the Human Fertilisation and Embryology (Parental Order) Regulations 2018. The checklist is as follows:(1) The child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding) (s.1(4)(a)).(2) The child’s particular needs (s.1.(4)(b)).(3) The likely effect on the child (throughout his life) of having ceased to be a member of the original family and becoming the subject of a parental order (s.1(4)(c)).(4) The child’s age, sex, background and any of the child’s characteristics which the court considers relevant (s.1(4)(d)).(5) Any harm (within the meaning of the Children Act 1989) the child has suffered or is at risk of suffering (s.1(4)(e).(6) The relationship which the child has with relatives, with any person who is a prospective carer with whom the child is placed, and with any other person in relation to whom the court considers the relationship to be relevant (s.1(4)(f) excluding the words from “including” onwards of the original test, by virtue of Schedule 1(2)(e) Human Fertilisation and Embryology (Parental Order) Regulations 2018).[21]Finally, the court’s paramount consideration must be to the child’s welfare throughout his life (s.1(2)).[22]I have been guided by the observations made by the former President of the Family Division, Sir James Munby, in paragraph 54 of Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam) as follows:
“A parental order has, to adopt Theis J’s powerful expression, a transformative effect, not just in its effect on the child’s legal relationships with the surrogate and commissioning parents but also, to adopt the guardian’s words in the present case, in relation to the practical and psychological realities of X’s identity. A parental order, like an adoption order, has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences. It creates what Thorpe LJ in Re J (Adoption: Non-Patrial) [1998] INLR 424 at 429, referred to as the “psychological relationship of parent and child with all its far-reaching manifestations and consequences”
. Moreover, these consequences are lifelong and, for all practical purposes, irreversible… And the court considering an application for a parental order is required to treat the child’s welfare throughout his life as paramount… Parliament has therefore required the judge considering an application for a parental order to look into a distant future.”[23]Additionally, I have had regard to the list of issues set out by Theis J in Re Z (Foreign Surrogacy) [2024] EWFC 304 to which an applicant for a parental order/an intended parent should have regard in advance of embarking on a surrogacy arrangement especially one which involves a number of different jurisdictions. That list of issues – which I shall refer to as the amended Re Z list - has subsequently been expanded by the decision of McFarlane P (as he then was) in Re Z (Unlawful Foreign Surrogacy: Adoption) [2025] EWHC 339 (Fam) and by my decision in Mr and Mrs K v Mr and Mrs Z [2025] EWFC 927. I make it plain that this list does not constitute a list of additional criteria required to satisfy the section 54/54A criteria (as the case may be). However, if matters of public policy are engaged within consideration of the statutory criteria or the court is concerned about the harm a child may have experienced pursuant to s.1(4) of the lifelong welfare test (see above), scrutiny of relevant matters in the list may be helpful. The amended Re Z list is a guide to good practice which, if followed, is likely to minimise difficulties in contact with public authorities - for example, those dealing with immigration – and to provide the information necessary to satisfy the court that a parental order is appropriate.[24]The amended Re Z list reads as follows:(1) What is the relevant legal framework in the country where the surrogacy arrangement is due to take place and where the child is to be born? Put simply, is such an arrangement permitted in that country?(2) When the child is born, will the intended parents be recognised as parents in that country, if so how? By operation of law or are the intended parents required to take some positive step and, if so, what steps need to be taken and when (pre or post birth)?(3) What is the surrogate’s legal status regarding the child at birth?(4) If the surrogate is married at the time of the embryo transfer and/or the child’s birth, what is the surrogate’s spouse’s legal status regarding the child at birth?(5) If an agency is involved what role do they play in matching the surrogate with the intended parents?(6) What information, preparation or support has the surrogate had about any proposed surrogacy arrangement?(7) Does the surrogate speak and/or read English? If not, what arrangements are in place to enable her to understand any agreement signed?(8) Will the intended parents and the surrogate meet and/or have contact before deciding whether to proceed with a surrogacy arrangement?(9) When will the agreement between the intended parents and surrogate be made, before or after the embryo transfer, and what are the reasons for it being at that time?(10) What arrangements are proposed for contact between the intended parents and the surrogate during the pregnancy and/or after the birth? For example, is it only via the agency or can there be direct contact between the intended parents and the surrogate?(11) In which jurisdiction will the embryo transfer take place and in which jurisdiction will the surrogate live during any pregnancy?(12) Can the jurisdiction where the child is to be born be changed at any stage and, if so, by whom and in what circumstances?(13) What nationality will the child have at birth?(14) Following the birth of the child, what steps need to be taken for the child to travel to the United Kingdom? What steps need to be taken to secure any necessary travel documentation for the child and how long does that take?(15) Will the intended parents need to take any separate immigration advice to secure the child’s travel to the United Kingdom and what is the child’s status once the child has arrived in this jurisdiction?(16) Keeping a clear and chronological account of events and relevant documents is not only important for the purposes of a parental order application but also, importantly, retains key information regarding the child’s background and identity.(17) Parties should consider early and meaningful engagement with either or all of HD, DfE and/or DHSC (depending on what the particular issues which have arisen are and bearing in mind the different responsibilities of each), especially where there are, or there are intimated proceedings, in some court or tribunal (for example, the First-tier Tribunal (Immigration and Asylum Chamber));(18) In particular, that if proceedings are issued in the Family Court, early consideration should be given to the addition of either or all of HD, DfE and/or DHSC (again depending on what the particular issues which have arisen are and bearing in mind the different responsibilities of each) as a party;(19) What steps have been taken by the intended parents in relation to estate planning (before and after a parental order is made) in respect of the child’s future welfare?(20) What steps have been taken by the intended parents in respect of future care and financial arrangements for the child in the event of the incapacity of one (or both) of the intended parents?(21) What steps have been taken by the intended parents in respect of future care and financial arrangements for the child in the event of the death of one (or both) of the intended parents?

Submissions

[25]What follows is a summary of the submissions made by Mr Landman on behalf of Mr A.[26]Mr Landman drew attention to the fact that each of the three judgments which have outlined and extended the Re Z list post-dated Q’s birth and, thus, the surrogacy arrangement itself. Additionally, the clinic and agency involved in this case was the same as the clinic and agency in X v W & Anor [2025] EWFC 25, that decision of Theis J dealing with a birth ultimately in Moldova during a timeframe (Autumn 2022 to Spring 2023) not dissimilar to the timeframe in this case. I observe that, in her judgment, Theis J was highly critical of both the agency and the clinic who displayed a “reckless disregard of the cross jurisdictional implications of the arrangement”.[27]Mr Landman submitted that the statutory criteria in s.54A were met. This was not a case constituting the clearest abuse of public policy, such that the making of a parental order should be refused (as per Hedley J in Re L (A Minor) [2010] EWHC 3146 (Fam)). In this case, Mr A had been given a false sense of security by the legal advice received from the agency and he had been candid and honest with the court. Ms X had not been exploited by him and he had not deliberately sought to evade public authorities. Q’s welfare required a parental order to be made to recognise the social, emotional and biological reality of her life.

Decision: Section 54A

[28]Mr A satisfies the criteria in s.54A. B was carried by Ms X and Mr A’s sperm, alongside a donor egg, was used to create the embryo. Mr A is plainly over the age of 18. He has a domicile of origin in Serbia but has now acquired a domicile of choice in this jurisdiction which has not been surrendered given the time spent abroad with Q after her birth in what was always a temporary arrangement. Mr A is a British citizen; works here; pays taxes here and owns property here. He intends to remain and to bring up Q in this jurisdiction. Q had her home with him both when the application was made in February 2024 and at the date of this hearing in February 2026. The application was also made within six months of Q’s birth. Ms X consented to the making of a parental order on 13 June 2024 by signing the relevant form and her signature was duly notarised as this was a formal agreement executed outside the United Kingdom.[29]Mr A set out the payments made to Ms X and to the surrogacy agency in detail and with commendable transparency in the evidence placed before the court. In sum total, Mr A spent 36,687 euros relating to agency and clinic expenses and a further 10,000 euros which represented a compensatory payment to Ms X because she could not work whilst pregnant. There has been no abuse of public policy with respect to the payments received by the surrogate: she has received the monies owed to her and that sum was similar to payments made in other surrogacy arrangements in Cyprus/Eastern Europe (as noted by the Parental Order Reporter). Ultimately however, Q’s welfare is paramount and overrides these matters because she needs a parental order to recognise and cement her place in her new family. Thus, I authorise the payments made in this case.[30]Finally, no order pursuant to s.54 or s.54A of the HFEA 2008 has previously been made with respect to Q.

Decision: Welfare

[31]Applying the matters set out in s.1(4) of ACA 2002 to the circumstances of this case, it is evident that Q is a cherished little girl. She is healthy and meeting her developmental milestones and has a close and loving relationship with Mr A who clearly adores her.[32]I accept that Mr A recognises just how important it is for Q to grow up with a full understanding of how she came to be born and for the circumstances of her birth to be communicated with love and in an age-appropriate way. Mr A has maintained contact with Ms X and recognises the special link she has with Q. He hopes to maintain good communication in future so that Q will have a chance of meeting with Ms X. Mr A has also made proper provision for Q should he become incapacitated or die.[33]All of these matters amply satisfy the criteria in s.1(4) of ACA 2002.[34]Thus, standing back and taking a holistic view of Q’s welfare throughout her life, I am satisfied that I should make Q the subject of a parental order in favour of Mr A. Q needs a parental order to give permanence and security to her care arrangements in circumstances where no one else other than Mr A seeks to provide lifelong care for her. The absence of a parental order would deny Q the social and emotional benefits of the formal and informal recognition of her relationship and family life with Mr A.

Discussion

[35]Once more, an application for a parental order illustrates the significant complexities which can arise from a surrogacy arrangement with inherent cross jurisdictional elements. Once again, an applicant has acted naively in relying on legal advice proffered by commercial organisations which themselves showed a wanton disregard for the legal situation of the intended parent, the surrogate herself and, most of all, the child born of the arrangement.[36]I recognise that, at the time when he began to take active steps, Mr A did not have the benefit of the amended Re Z list to inform his surrogacy journey (as it is often termed). However, what happened in this case illustrates the dangers of embarking upon an international surrogacy journey without the benefit of having taken independent legal advice in advance of so doing. Sweeping generalisations made by the agency about the legalities of what was contemplated ought have been interrogated by Mr A early on but, as he admitted in his second statement, he was taken in by what seemed to him to be the clinic’s “very professional manner”. There were clear warning signs. First, Mr A told the court that legal advice from the agency was never explicitly shared with him in documentary or even verbal form. Second, in October 2023, Mr A had been told by the Serbian Embassy in Bucharest that the planned place of birth – Moldova – had no law relating to surrogacy. Third, he had also been advised by a Serbian lawyer not to arrange for Q to be born in Serbia because of the legal situation with respect to surrogacy in that country. Notwithstanding that advice, the assurances given by the agency that either Serbia or Moldova was a suitable place ought to have put him on notice that the agency’s legal advice might be suspect and ought not to be relied on. By then, it was too late as Q was born unexpectedly elsewhere from that which had been planned in Moldova. The state of her birth - Kyrgyzstan – also appears to have had no legal framework within which surrogacy to achieve parenthood by a single man could be formally recognised.[37]Mr A and Q paid the price for these chaotic arrangements in that he was unable - over many months - to obtain a British passport for Q because he did not have access to original surrogacy and other documents. Whilst her premature birth may have contributed to this delay, the fact that her birth took place in a country which was not the country in which the clinic and the agency were located undoubtedly appears to have complicated matters. Initially, Mr A was told that it was contrary to Cypriot law to give him original documents relating to the surrogacy arrangement but, at a much later date, this proved not to be an obstacle after all for reasons which were wholly unclear to Mr A and to this court.[38]Having considered the evidence as a whole, I have however concluded that Mr A did not act other than in good faith albeit he acted naively.[39]I urge intended parents to obtain independent legal advice about what is contemplated before they embark on a surrogacy journey and cause a child to be born. The glib assurances by this agency that a child could be born anywhere other than the state of the surrogate’s nationality builds into any such surrogacy arrangement legal uncertainty, if not downright illegality, as the circumstances of this case so clearly illustrate. Additionally, the situation in this case was complicated from the very start by the fact that it was never envisaged that the surrogate would give birth in the country in which the embryos were implanted into her. Leaving aside the undeniable risk that medical care for the surrogate and the unborn child might be compromised by such an arrangement, it creates legal uncertainty, potential delay in resolving legal and other administrative matters, and exposes the surrogate and unborn child to unacceptable risk arising from unforeseen consequences such as premature birth in a state not envisaged as the place of birth.

Conclusion

[40]I wish Q and Mr A every happiness in future. Though the making of a parental order does not change what they feel for each other, it is nevertheless a cause for celebration.[41]However, I was told that Mr A may wish in future to have another child by surrogacy. If he chooses to do so, he would be well advised to obtain independent legal advice before he embarks on another surrogacy journey and contracts with another surrogacy agency and clinic. He may find the court less prepared to exercise its powers in his favour if it is faced with similar circumstances in future.[42]That is my decision.