Sarah Dodds, senior associate in the family team at Birketts LLP, shares a cautionary tale for parents considering surrogacy, and examines the legal issues surrounding this contentious area of family law.
The decision in Re J (A child) (Surrogacy: Adoption Order) [2025] EWHC 2960 (Fam) is another cautionary tale for intended parents-to-be, with the judge highlighting the risks of meeting potential surrogates online.
In Re J, the surrogate had sexual intercourse with an unknown male shortly after attempted insemination with sperm from the intended father. She became pregnant following the sexual intercourse rather than the insemination and the child was not genetically linked to the intended parents, although they were not aware of this at the time of birth.
As practitioners will be aware, it is a requirement of Section 54 of the Human Fertilisation and Embryology Act 2008 that the child is genetically linked to one of the intended parents in order for a parental order to be made. This is one of the Section 54 criteria that has held fast despite more lenient judicial treatment of some of the other criteria, such as the timing of the application for example.
Staging a cover-up
Therefore, whilst the intended parents had doubts as to J’s paternity by the time they applied for a parental order, they sought to cover up this lack of genetic link with falsified DNA tests. This resulted in protracted proceedings and ultimately an adoption order being made rather than a parental order.
The judge was critical of the parents’ actions and was clear that while it was in this particular child’s lifelong best interests for an adoption order to be made, therefore ensuring J’s legal position reflected their day-to-day life with the intended parents, the outcome might not be the same in another case.
This highlights that while the judiciary is mindful of the child at the centre of every case and will do what they can within the confines of the law to provide that child with certainty and permanence, it is not always possible to do so.
Online dangers
Re J followed several recent cases that have highlighted the dangers of entering into a surrogacy arrangement without having or understanding all the relevant information. This can be exacerbated when the intended parents meet their surrogate online although even when an agency is involved, intended parents have to do robust due diligence.
In the case of Re Z (Foreign Surrogacy) [2024] EWFC 304, the intended parents used an agency but ultimately had little control over the practical arrangements which caused the child to be born into quite precarious legal and practical circumstances. In her judgment, the judge set out a non-exhaustive list of “key issues any person considering embarking on a surrogacy arrangement (particularly one that involves the surrogate coming from and/or the child being born in a foreign jurisdiction) should consider before they enter in any surrogacy arrangement”.
This list is a key resource for anyone considering surrogacy and highlights the need for critical assessment at an early stage.
Clear boundaries
The issues that can arise, particularly following informal arrangements, can have a direct effect on whether a parental order can be made and can lead to insecurity around the child’s status. It is imperative that intended parents are alive to this and think about the end goal.
If intended parents wish to use a surrogate that they meet online, or indeed someone they are introduced to via an agency, they should aim to build a trusted relationship over time, making sure that they have all agreed specific boundaries which are acceptable to everyone involved before embarking on the surrogacy process.
On a practical level this is often easier to do if an agency is involved. However, it is important that the intended parents themselves cross-check and critically assess what they are being told by the agency, not just to protect their own position and the child’s position but to ensure that they are progressing their surrogacy in an ethical way.
Front and centre
The risks involved in surrogacy arrangements are put into sharp focus in the recent report of the UN Special Rapporteur on violence against woman and girls, which called for a global outright ban on surrogacy.
Whilst the conclusions seem stark to practitioners working in this space who frequently deal with positive surrogacy stories and the framing of the report and its blanket conclusions have been criticised, against this background it is ever more important for intended parents to ensure that they are working with reputable, ethical agencies and are properly testing the intended arrangements. The surrogate’s welfare and their child’s lifelong welfare interests must be front and centre.
Failure to develop a relationship with the surrogate and critically assess the circumstances of the proposed surrogacy arrangement might result in a child being born into an uncertain situation with no clear and obvious route to secure their lifelong welfare interests.
About the author
Sarah Dodds is a senior associate in family law at UK Top 50 law firm Birketts. She advises on all legal issues arising on the breakdown of relationships. With over 10 years’ experience, she is recommended in the Spear’s Family Lawyer Index and is a trained collaborative solicitor. As well as complex, high-conflict child arrangements, Dodds has a particular interest in legal issues relating to modern families and family creation.
