Family Court issues repeat warning in anonymous surrogate case
13 November 2025
Re B and C v D and H (Anonymous Surrogacy) [2025] EWFC 366
Put simply, 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. (Mrs Justice Theis DBE)
This case concerned an application by intended parents for a parental order in respect of an 18-month-old child following a surrogacy arrangement with a surrogate in Nigeria whom neither of the intended parents had met and about whom they had no information.
One of the issues before the court was who had, in fact, carried the child as there was information that more than one surrogate had been used after advice was given by the clinic after an initial failed attempt at embryo transfer with the first surrogate.
After a successful embryo transfer and positive pregnancy test, the intended parents were kept updated throughout the pregnancy and attended scans via video link. The surrogate’s face, however, was never seen or identified. In March 2024 the intended parents travelled to Nigeria for the child’s birth and the child was placed in their care soon after her birth and has remained in their care ever since.
An application for a parental order was made in June 2024.
In order to make a parental order the requirements of S54 Human Fertilisation and Embryology Act 2008 (“HFEA 2008”) must be satisfied which specifies that on an application made by two people the court may make an order providing for a child to be treated in law as the child of the applicants if the child has been carried by a woman who is not one of the applicants (the surrogate), the gametes of at least one of the applicants were used to bring about the creation of the embryo that is then placed in the woman who goes on to carry the child, that the applicants must be married, civil partners or living together in an enduring family relationship. The application must be made within 6 months of the child’s birth, and the child must be living with the applicants.
The court must be satisfied pursuant to S54(6) HFEA 2008 that the woman who carried the child and any other person who is a parent of the child have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.
S.54 (7) then provides that subsection (6) does not require the agreement of a person who cannot be found or is incapable of giving agreement.
Problems arose in this case after the Home Office queried the marital status of the surrogate and stated they could not be satisfied that the commissioning father could be the father in line with UK nationality laws in order to pass his British status onto the child. The Home Office could not establish to their satisfaction that either intended parent had parental responsibility for the child.
The court was also not satisfied that the requirements of S.54 had been properly met and the court directed further evidence be obtained. Following this the clinic in Nigeria (“the Clinic”) confirmed via the surrogacy agency that the surrogate wished to remain anonymous and the Clinic then refused to provide any further information. Further attempts were made to obtain evidence from the nurse who acted as a witness for the surrogacy agreement, but the Clinic said they would not respond any further. No further information was apparently made available in respect of the existence of a second surrogate.
As a result of the court’s concern about the circumstances surrounding the surrogacy Theis J directed that the Secretary of State for the Home Department (“SSHD”) should be given notice of the application and invited to confirm if she wished to intervene. On 26 September 2025 the SSHD informed the court that she did not wish to intervene or make representations.
As Theis J sets out, consent under S54(6) is the cornerstone of the statutory framework. The court can make a parental order if it is satisfied that the person who is to give the consent cannot be found.
Theis J had regard to Re D and L (Surrogacy) [2012] EWHC 2631 Fam, in which Baker J (as he then was) said this in respect of dispensing with consent (D and L, [28]-[29]):
“First, when it is said that the woman who gave birth to the child cannot be found, the court must carefully scrutinise the evidence as to the efforts which have been taken to find her. 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. Furthermore, it will normally be prudent for the applicants to lay the ground for satisfying these requirements at an early stage. Even where, as in this case, the applicants do not meet the surrogate, they should establish clear lines of communication with her, preferably not simply through one person or agency, and should ensure that the surrogate is made aware during the pregnancy that she will be required to give consent six weeks after the birth.
“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.”
Theis J also had regard to the earlier decision of Re H (Anonymous Surrogacy) [2025] EWHC 220 in which Sir Andrew McFarlane, President of the Family Division said as follows (H, [19]):
“…Whilst there is no comparable statutory restriction on surrogacy cases originating from Nigeria, 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.”
At [20] the President also warned against using an anonymous surrogate:
“A further cause for concern in the present case is the anonymity of the surrogate mother. Not only does anonymity prevent the court from being able to be satisfied that the mother knows of the application and consents to it, it also raises the level of suspicion that the arrangement may have been otherwise than it is said to be. Whilst Mr and Mrs H have explained their motivation for opting for an anonymous surrogacy, their decision has, in fact, caused them a great deal of difficulty in presenting the present application. Those who follow in their footsteps in the future would be well advised to avoid engaging with an anonymous surrogate.” [emphasis added]
Theis J noted that the intended parents had filed the gestational surrogacy arrangement which used the surrogate’s initials ‘GD” and confirmed that she was not married and agreed to relinquish all legal parental, and custodial rights over the child. The signature had been witnessed by a named nurse.
Theis J held ([46]):
“Having stood back and considered all the evidence, and not without some hesitation, I am satisfied on the balance of probability that the surrogate mother was a woman known as “G.H” in the surrogacy agreement and “G.H 1” in other documents, that she carried H and the prospects of tracing her, giving her notice of and securing her engagement in these proceedings are very unlikely with the consequence that she ‘cannot be found’ in accordance with s54(7) and the application can proceed without the need to obtain her agreement under s54(6).”
Theis J was provided with three reports from the Children’s Guardian who had visited the family, carried out his own welfare assessment, and undertaken the necessary safeguarding checks and ultimately, Theis J was satisfied that a parental order was in the child’s best interests and would meet her lifelong welfare needs.
This is another case in which intended parents were warned about the need to comply with the requirement to evidence to the court that the surrogate has freely, and will full understanding of what is involved, agreed unconditionally to the making of a parental order.
Clare Ciborowska is a barrister at 1 Crown Office Row Brighton specialising in private and public law children cases with a focus, inter alia, on modern families and issues in respect of parental responsibility.
