The recent decision in Mr and Mrs K and Mr and Mrs Z [2025] EWHC 927 (Fam) has thrust a glaring inconsistency in English surrogacy law into sharp focus. The case concerned 72-year-old intended parents who successfully obtained a parental order following a Californian surrogacy arrangement, raising a fundamental question: is our law’s approach to age in reproductive matters fit for purpose in an age of advancing medical technology?
The Age Paradox
English surrogacy law presents a curious paradox. While the Human Fertilisation and Embryology Act 2008 establishes a minimum age of 18 for intended parents seeking parental orders, it remains conspicuously silent on maximum age limits. This creates an anomalous situation where the law deems someone too young to make reproductive decisions at 17 years and 364 days, yet considers no one too old, regardless of their capacity to provide long-term care for a child. The omission likely reflects the drafters’ focus on domestic fertility treatment without adequate consideration of how permissive foreign jurisdictions and evolving reproductive science would enable arrangements that circumvent implicit policy assumptions.
The decision highlights the practical implications of this legislative gap. Mrs Justice Knowles granted the parental order despite the applicants being 72 years old. However, she emphasised the importance of comprehensive welfare planning for children born to older intended parents, suggesting judicial awareness of the unique challenges such arrangements present.
The Welfare Test Under Strain
The paramountcy of the child’s welfare, enshrined in section 1 of the Children Act 1989, ostensibly guides all decisions affecting children. Yet surrogacy cases reveal the limitations of applying this retrospective test to arrangements that, by their very nature, create fait accompli situations. Once a child is born, courts are understandably reluctant to deny parental orders that would leave children in legal limbo, regardless of concerns about their intended parents’ age or circumstances.
This dynamic effectively renders the welfare test a rubber stamp in many surrogacy cases. The real welfare considerations – whether it serves a child’s interests to be born to parents who may be deceased or incapacitated before the child reaches majority – are never truly tested because they arise only after the child’s existence makes the question moot.
International Forum Shopping and Legislative Vacuum
The Californian surrogacy arrangement in K and Z exemplifies how intended parents circumvent English restrictions through international forum shopping. California’s permissive surrogacy laws, combined with advanced reproductive technologies, enable arrangements that would be impossible or problematic under English law. The 72-year-old applicants could access services abroad that English clinics would most likely refuse on ethical grounds, then return to claim parental recognition under English law.
This creates a two-tier system where those with sufficient resources can effectively bypass English policy considerations by travelling abroad. The result is that English courts routinely validate arrangements that may contradict the underlying policy assumptions of domestic law, creating precedents that further erode any meaningful regulatory framework.
The Reform That Never Came…
The timing of K and Z is particularly poignant given the recent shelving of proposed surrogacy law reforms in England and Wales. The Law Commission’s comprehensive review recommended significant changes to modernise surrogacy regulation, but political priorities have relegated these reforms indefinitely. This leaves English law increasingly anachronistic as reproductive technology advances and social attitudes evolve.
The absence of reform means continued reliance on legislation designed for a different era, where 72-year-old parents were a biological impossibility rather than a medical reality. Each case like K and Z demonstrates the growing disconnect between legal frameworks and contemporary reproductive possibilities.
A Question of Generations
The K and Z case ultimately raises profound questions about intergenerational responsibility and the rights of future generations. While older parents are not a new phenomenon, (historically often involving an older male with a younger female partner), the prospect of two 72-year-old parents represents an entirely different scenario. Where traditional age-gap relationships might see one parent survive to support the child through to adulthood, dual elderly parenthood dramatically increases the probability of childhood bereavement. While the intended parents’ age may not immediately affect their ability to care for a newborn, the statistical reality is stark: a child born to two 72-year-old parents faces a significant probability of losing both parents during childhood or adolescence.
The court’s emphasis on “comprehensive welfare planning” suggests recognition of these realities, but such planning cannot substitute for living parents. The question remains whether English law should continue to facilitate arrangements that predictably create orphans, however well-intentioned the initial desire for parenthood may be.
As reproductive technology continues to push biological boundaries, the K and Z decision serves as a stark reminder that legal frameworks must evolve beyond mere procedural fairness to grapple with fundamental questions about the limits of reproductive autonomy and society’s obligations to future generations. The law’s current silence on age limits may itself be speaking volumes about the increasingly pressing need for comprehensive reform.
Aysel Akhundova is a Senior Associate at Dawson Cornwell
