Anonymous Surrogacy: A Stern Warning from the Court

Isabelle Blumenthal and Evangeline Evans, solicitors in the Family & Matrimonial Team at Field Seymour Parkes recently attended the Resolution Modern Families Forum for the second year in a row. Isabelle sets out in this article a key takeaway from two recent cases involving anonymous surrogates in Nigeria.

Becoming a new parent is already a stressful experience for many. However, recent caselaw has highlighted the difficulties that have arisen from intended parents who have entered into anonymous surrogacy arrangements. Whilst the parental orders in both cases were ultimately granted, the difficult legal position which was established in these two cases only served to increase stress, delay and legal costs for the respective intended parents.

This was highlighted in the recent cases of Re H (Anonymous Surrogacy) [2025] EWHC 220 and Re B and C v D and H (Anonymous Surrogacy) [2025] EWFC 366  where in both cases the intended parents entered into an anonymous surrogacy arrangement in Nigeria at the same clinic. The judgements demonstrate the court’s frustration with the parties involved and the circumstances in which the applications for a parental order were made, with the judges involved setting out clear advice on what is expected for those undertaking a surrogacy journey.

As these cases involved anonymous surrogates, some issues bubbled to the surface when the Home Office were unable to provide a British passport for the child in Re B and C v D and H without receipt of the surrogate’s written consent. This same issue also transpired when it came to the parental order application in both cases. As the surrogate mothers wished to remain anonymous, neither surrogate was willing to provide their consent and therefore the required consent could not be obtained. In Re B and C v D and H, the surrogate mother felt so strongly that she threatened to sue the clinic on the basis she had signed up to a fully anonymous process and did not wish to be contacted in relation to the surrogacy.

The lack of consent being provided for the parental order application created a large issue as the matter of consent is generally considered paramount for surrogacy arrangements. Without a clear process of consent being provided and obtained, it raises significant questions, including potential public policy concerns. Despite these concerns, the court still has the discretion to dispense with the required consent so long as the surrogate mother ‘cannot be found’. As is often seen in surrogacy cases, the court bends themselves backwards in order to manipulate the legislation into the children’s best interests, which typically tends to be for the intended parents to be granted a parental order so that they are the child’s legal parents.

Therefore, the matter came before the court to consider whether the requirement for the surrogate’s consent could be dispensed with under s.54(7) of the HFEA 2008 on the basis that she “cannot be found”. The court was left with no other option but to conclude in both cases that all reasonable steps had been taken to locate the surrogate. The clinic obstructed further contact and the surrogate’s anonymity had been confirmed. Following this logic, the surrogate was unable to be found and so the parental order could proceed without her consent and be granted.

Mrs Justice Theis DBE states in Re B and C v D and H that the consequences of the application being brought about in such a manner “has been considerable delay in determining this application and resulted in immigration complications for H. Such delay and complications have been detrimental to H through the continuing uncertainty and caused significant distress and anxiety for the applicant intended parents.”

Theis J continues in her judgement to comment the following “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”. The court’s frustration and approach cannot be made much clearer than this. It is essential that when entering into a surrogacy arrangement, the intended parents know exactly who the surrogate is and have met them beforehand. Entering into a surrogacy arrangement is already an expensive and stressful process and by using an anonymous surrogacy it only complicates matters for all involved.

For example, in Re B and C v D and H, the intended parents had to wait more than 15 months and attend four separate court hearings before the court was in a position to determine their application for a parental order. Similarly, with Re H, the intended parents waited nearly two years after the birth of their child before they were granted the parental order which made them the legal parents of their daughter.

The child is always the court’s primary focus in surrogacy matters; however, it is generally considered that the court is starting to lose patience with the lengths needed to be taken to grant a parental order. It therefore appears that the court is seeking a test case to make the point even clearer that it simply cannot continue with intended parents not adhering to the required process.

A stern warning was given by Mrs Justice Theis for any future intended parents embarking on their surrogacy journey who choose to proceed with an anonymous surrogate with knowledge of the risks, that this could result in there being sufficient grounds for the court to consider whether there are wider public policy issues engaged in such a situation and whether a parental order ought to be made in those circumstances.

The message from the court cannot be made any clearer. Intended parents on a surrogacy journey must meet their surrogate beforehand or have means of contacting the surrogate to obtain consent for a parental order. If this cannot be done, the courts are ready to change their stance and might not be as lenient as they have previously been.

If you have any queries regarding surrogacy or any aspects of family law, then please contact a member of our Family & Matrimonial Team.