Cross-Border Surrogacy and the Welfare of Children: Lessons from Re Z (Unlawful Foreign Surrogacy)

Introduction

With the varying costs and legal frameworks for surrogacy across different jurisdictions, international surrogacy arrangements have become an increasingly popular option for couples who do not want to or cannot have their own children. However, this rise has outpaced the ability of the law to regulate these arrangements coherently. The recent case of Re Z (Unlawful Foreign Surrogacy: Adoption) [1] starkly illustrates this gap. This article will examine the ruling in Re Z, the UK’s surrogacy laws, critique the law’s inconsistency in deciding between public policy and the welfare of the parties involved, and highlight the need for reform.

Re Z and the UK’s Surrogacy Laws

In the UK, the process of surrogacy is mainly regulated by the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008. S.2 of the Surrogacy Arrangements Act specifically states that any commercial surrogacy agreements are to be rendered void, and any third-party participating in the agreement as a dealer is to be criminalised [2]. Furthermore, as stated in s.54 of the Human Fertilisation and Embryology Act, legal parenthood can only be transferred by a parental order [3]. This order could only be granted under strict conditions, such as genetic connection of the embryo to at least one of the intended parents, marriage or civil partnership between the intended parents, and domicile in the UK. These statutory provisions show the Parliament’s determination to restrict commercial surrogacy and to ensure surrogacy agreements are ethically sound. However, these limitations have served as great hurdles for international surrogacy.

These difficulties were vividly illustrated in Re Z. In this case, the applicants were two women in their late sixties. They had entered into a commercial surrogacy arrangement in the Turkish Republic of Northern Cyprus, where Ukrainian women were chosen as surrogate mothers, and donor gametes were used. Since there was a lack of a genetic connection between the applicants and the children, the arrangement contravened the UK’s prohibition on commercial surrogacy. In his judgment, Sir Andrew McFarlane P held that a parental order could not be lawfully made since s.54(1)(b) requires at least one of the applicant’s gametes to be used in the creation of the embryo. He decided adoption orders would be appropriate instead. The court’s reluctance to grant parental orders illustrates the growing gap between the welfare rhetoric of family law and the statutory constraints.

The Balance between Public Policy and Welfare, and the Need for Reform

As s.1 of the Children Act 1989 states, the child’s welfare should be ‘the court’s paramount consideration’ when determining the upbringing of the child [4]. The UK courts have previously granted parental orders in favour of applicants in international surrogacy arrangements in an effort to prioritise welfare over public policy. In X & Y (Foreign Surrogacy) [5],  the applicants were a British couple who travelled to Ukraine for a commercial surrogacy arrangement. The court decided that, based on the facts of the case, the applicants were acting in good faith and were not attempting to commit fraud. A parental order was granted. Similarly, in Re L [6], a British couple commissioned a California surrogacy. The court granted the parental order. Hedley J explained that ‘reasonable expenses’ was an ‘opaque concept’, and clarified that children’s welfare was the court’s paramount consideration. Afterwards, in Re X (A Child) [7], a parental order was granted even after the 6-month time limit specified in s.54(3) of the Human Fertilisation and Embryology Act had elapsed [8].  

In the above cases, the court’s effort to prioritise welfare is overt. Yet, Re Z demonstrates how the courts cannot always bypass absolute statutory wording. While the welfare of children is paramount in theory, it is subordinate to policy in practice. To combat this, the Law Commission published a report in 2023, Building Families through Surrogacy [9], proposing reforms to the surrogacy laws in the UK. The report discourages international surrogacy agreements and promotes domestic surrogacy arrangements by introducing a new pathway to legal parenthood, which will serve as an alternative so that the intended parents do not have to wait to obtain a parental order. Furthermore, a proposed reform will eliminate the need for the surrogate to consent to a parental order. For those who prefer international surrogacy arrangements, the Law Commission proposes heightened legal and practical measures to protect the welfare of children, like assisting them in acquiring UK nationality and recording relevant information on the Surrogacy Register [10].

Conclusion

Re Z exposes the contradiction between welfare ideals and statutory rigidity. While the courts have occasionally found ways to grant in favour of welfare as opposed to adhering to statutory policies, cases like Re Z show that there is a dire need for reform. The Parliament should adopt the reforms suggested by the Law Commission to maintain coherent rulings, clearer international rules, and, most importantly, protect the welfare of the involved children.

References

[1] Re Z (Unlawful Foreign Surrogacy: Adoption) [2025] EWHC 339 (Fam)

[2] Surrogacy Arrangements Act 1985 s 2

[3] Human Fertilisation and Embryology Act 2008 s 54

[4] Children Act 1989 s 1

[5] X & Y (Foreign Surrogacy), Re [2009] 1 FLR 733

[6] L (A Child) (Parental Order: Foreign Surrogacy), Re [2010] EWHC 3146 (Fam)

[7] Re X (A Child) (Surrogacy: Time limit) [2014] EWHC 3135 (Fam)

[8] HFEA (n 3) s 54(3)

[9] Law Commission, Building Families through Surrogacy (Law Com No 411, 2023)

[10] Law Commission, ‘Surrogacy’  < https://lawcom.gov.uk/project/surrogacy/> accessed 1 Nov 2025

(Image Credits: Aditya Romansa on Unsplash)