Factors to Consider Before Entering into an International Surrogacy Arrangement
The desire to become a parent can take over your life. That’s why, when someone suggests parenthood through international surrogacy, you are likely to jump at the chance without fully considering all the pros and cons and without a full appreciation of the legal process.
In this blog, our Family Law Solicitors examine three recent court judgments highlighting what parents-to-be need to consider before committing to an international surrogacy arrangement and what they need to put in place before applying for a parental order.
Our lawyers speak Arabic, Armenian, Farsi, French/Mauritian Creole, Spanish, Tamil Tagalog/Ilonggo, Urdu/Punjabi.
Judicial guidance on international surrogacy arrangements
Family court judges see the outcome of international surrogacy arrangements when they are asked to make a parental order, making the parents-to-be the legal parents of the baby.
Sometimes judges, like Family Law Solicitors, wish those entering international surrogacy arrangements had taken specialist legal advice before embarking on surrogacy. That isn’t with the intention of putting them off surrogacy, but instead to give the parents-to-be a deeper understanding of the legal, financial and emotional journey of becoming parents through surrogacy.
Judges have put together guidance for intended parents in three recently reported surrogacy cases:
- Re Z (Foreign Surrogacy) [2024] EWFC 304 and
- Re Z (Unlawful Foreign Surrogacy: Adoption) [2025] EWHC 339 (Fam)
- K & Anor v Z & Anor [2025] EWHC 927 (Fam) (16 April 2025)
In Re Z (Foreign Surrogacy) [2024] EWFC 304, the judge said:
‘’This application for a parental order in relation to Z, age 1, provides an important cautionary reminder of the need for those embarking on surrogacy arrangements, particularly those that cross a number of different jurisdictions, to carefully consider, in advance, the arrangements, consequences and implications of that arrangement. This is not only for the adults involved but, more importantly, for any child born as a result of such an arrangement. The lack of care in some arrangements and the real risks it exposes the intended parents, surrogate and any child to is very concerning.’’
Matters to consider before international surrogacy
In In Re Z (Foreign Surrogacy) [2024] EWFC 304, the judge said that when intended parents embark on international surrogacy arrangements, they need to ensure three things:
- There is clarity about what is proposed, and
- The written agreement clearly provides for the essential arrangements, and
- The relevant legal framework is understood at each stage.
List of surrogacy questions
Assisted by the counsel, the judge in Re Z approved a list of questions that intended parents need advice on from specialist Surrogacy Solicitors.
The questions are paraphrased here:
- What is the relevant legal framework in the country where the surrogacy arrangement is due to take place and where the child is to be born? Is surrogacy legal in that country?
- When the child is born, will the intended parents be recognised as parents in that country? Is that through the law in the country, or will the intended parents need to take steps before or after the birth of the child?
- What is the surrogate’s legal status to the child at birth?
- If the surrogate is married at the time of the embryo transfer and/or when the child is born, what is the surrogate’s spouse’s legal status in relation to the child?
- If an agency is involved, what role will they play in matching the surrogate with the intended parents?
- What information, preparation or support has the surrogate had about the proposed surrogacy arrangement?
- Does the surrogate speak or read English? If not, what arrangements are in place to enable her to understand the surrogacy agreement?
- Will the intended parents and the surrogate meet or have contact before deciding whether to proceed with a surrogacy arrangement?
- When will the agreement between the intended parents and surrogate be made, before or after the embryo transfer, and what are the reasons for it being at that time?
- What arrangements are proposed for contact between the intended parents and the surrogate during the pregnancy and/or after the birth? For example, is contact only via the agency?
- Which jurisdiction will the embryo transfer occur in, and which jurisdiction will the surrogate live in during pregnancy?
- Can the jurisdiction where the child is to be born be changed at any stage, and if so, by whom and in what circumstances?
- What nationality will the child have at birth?
- Following the birth of the child, what steps need to be taken for the child to travel to the UK, what steps need to be taken to secure any necessary travel documentation for the child, and how long will that take?
- Will the intended parents need to take separate immigration advice to secure the child’s travel to the UK, and what is the child’s status once the child has arrived in the UK?
- Will a diary be kept consisting of a chronological account of events, together with relevant documents to help with the parental order application, and to retain information regarding the child’s background and identity?
The long list in Re Z highlighted the judge’s concerns about the parental order application's circumstances and the lack of planning, including nationality and immigration planning. The international surrogacy arrangement was complicated because the two applicants for the parental order were civil partners living in the UK with Indefinite Leave to Remain and with settled status under the EU Settlement Scheme.
In the second Re Z case (referred to as Re Z (Unlawful Foreign Surrogacy: Adoption) [2025] EWHC 339 (Fam)), two additional matters to consider were added to the long 16-point list:
- Early consideration should be given to meaningful engagement with departments such as the Home Department (HD), Department of Education (DfE) and/or Department of Health and Social Care (DHSC) (depending on what the particular issues which have arisen and the different responsibilities of each) and especially where there are, or there are intimated proceedings, in a court or tribunal, such as an immigration tribunal, and
- If proceedings are issued in the family court, early consideration should be given to adding either or all of HD, DfE, and/or DHSC as a party.
If the 18-point list did not give intended parents pause for thought and encourage them to consult specialist Surrogacy Lawyers and Immigration Solicitors, the third case of K & Anor v Z & Anor [2025] EWHC 927 (Fam) (16 April 2025) added three further points for intended parents and the family court to consider:
- What steps have been taken by the intended parents concerning estate planning (before and after a parental order is made) regarding the child's future welfare?
- What steps have been taken by the intended parents regarding future care and financial arrangements for the child in the event of the incapacity of one (or both) of the intended parents?
- What steps have been taken by the intended parents in respect of future care and financial arrangements for the child in the event of the death of one (or both) of the intended parents?
In the third case, estate planning and the child’s future were flagged as an issue for consideration as the applicants were 72 years of age and seeking an order in respect of a 14-month-old child born to a US surrogate.
Consult Surrogacy and Immigration Lawyers at OTS Solicitors
At OTS Solicitors, our clients are located across the globe. We are experts in family law, international surrogacy arrangements and individual immigration.
Our combination of expertise makes us stand out when selecting a Surrogacy Lawyer to:
- Take preliminary legal advice from, and
- When seeking immigration legal advice on the child’s entry clearance and British citizenship, and
- When requiring representation in a parental order application.
Our specialism in the field of family and immigration law is recognised by being:
- The winner of SME News Best Immigration & Family Law Firm 2025 – Southern England.
- Ranked in the leading law directory Legal 500.
- Featured in the internationally recognised law directory, Chambers & Partners.
Online and London Family Law Solicitors and Immigration Lawyers
For surrogacy law and immigration legal advice, call OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
Our lawyers speak Arabic, Armenian, Farsi, French/Mauritian Creole, Spanish, Tamil Tagalog/Ilonggo, Urdu/Punjabi
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