Overseas surrogacy pitfalls
11 August 2025
Surrogacy specialist Victoria Maxwell looks at how to best plan your overseas surrogacy journey.
A number of recent reported cases are highlighting judges’ concerns about the dangers of overseas surrogacy arrangements involving jurisdictions - such as Cyprus - where there is a lack of legal framework.
In these particular cases, all parties have been left at risk of exploitation. Additionally, the intended parents have found themselves stranded overseas for a number of years and their children left stateless, without a clear entry route to the UK or a way for them to be legally recognised as their parents.
As a result, the judges hearing the matters have released guidance to intended parents about the things they should think about before they embark on an overseas surrogacy arrangement.
A helpful initial checklist for anyone considering an overseas surrogacy
The case of Theis J in Re Z (Foreign Surrogacy) [2024] EWFC 304 set out a list of key issues, which can be used as a helpful checklist for anyone considering an overseas surrogacy. They are:
- 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? Put simply, is such an arrangement permitted in that country?
- When the child is born, will the intended parents be recognised as parents in that country, and, if so, how? Will this be by operation of law or are the intended parents required to take some positive steps? And, if so, what steps need to be taken and when (pre- or post-birth)?
- What is the surrogate’s legal status regarding the child at birth?
- If the surrogate is married at the time of the embryo transfer and/or the child’s birth, what is the surrogate’s spouse’s legal status regarding the child at birth?
- If an agency is involved, what role do they play in matching the surrogate with the intended parents?
- What information, preparation or support has the surrogate had about any proposed surrogacy arrangement?
- Does the surrogate speak and/or read English? If not, what arrangements are in place to enable her to understand any agreement signed?
- Will the intended parents and the surrogate meet and/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 it only via the agency, or can there be direct contact between the intended parents and the surrogate?
- In which jurisdiction will the embryo transfer take place and in which jurisdiction will the surrogate live during any 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 United Kingdom? What steps need to be taken to secure any necessary travel documentation for the child, and how long does that take?
- Will the intended parents need to take any separate immigration advice to secure the child’s travel to the United Kingdom, and what is the child’s status once the child has arrived in this jurisdiction?
- Finally, keeping a clear and chronological account of events and relevant documents is not only important for the purposes of a parental order application but also, importantly, retains key information regarding the child’s background and identity.
The judge in this case also emphasised the importance of the intended parents seeking legal advice from a specialist solicitor before embarking on any such arrangements involving a foreign jurisdiction.
The unique challenges of cross border surrogacy arrangements
As cross border surrogacy arrangements pose unique challenges, the court’s reporting of these cases is to try to avoid further issues in future.
In a recent case, Re Z (Unlawful Foreign Surrogacy: Adoption) [2025] EWHC 339 (Fam) (another matter concerning Cyprus), the President of the Family Division confirmed his judgment was: “being handed down and made public in order to draw attention, in entirely anonymous terms, to the circumstances of the case which are likely to be a matter of public interest and concern, and to offer some advice for those who may, in future, unwisely seek to follow the path taken by the two applicants in this case by engaging in an unlawful, commercial, foreign surrogacy arrangement.”
If you are considering an overseas surrogacy arrangement, due to the above guidance issued by the court, it is imperative that you inform yourself of the legal implications. The above list is merely a starting point.
The President has made his voice clear. Although in the case of Re Z (Unlawful Foreign Surrogacy: Adoption) [2025] the court felt obliged to make an adoption order, he made clear his judgment should put “would-be parents (of any age) who are contemplating entering into a commercial foreign surrogacy arrangement on notice” that the court may refuse to grant an adoption or parental order if the end result would leave their children permanently “State-less” and “legally parent-less”. He went on to say: “Put bluntly, anyone seeking to achieve the introduction of a child into their family by following in the footsteps of these applicants should think again.”
Victoria Maxwell is a Senior Associate Solicitor and Collaborative Lawyer, with a particular specialism in international surrogacy. For more information or specialist advice, please contact Victoria or one of our family team.
