Further High Court guidance for intended parents embarking on surrogacy arrangements

Kingsley Napley represented the applicant parents in the case of Mr and Mrs K v Mr and Mrs Z [2025] EWHC 927 (Fam). The High Court judgment offers importance guidance for those who are intending on entering into a surrogacy arrangement in the future. 

Background

The case concerned two applicants, Mr and Mrs K, who applied for a Parental Order in respect of a child, B, who had been born in the United States following a gestational surrogacy agreement. Mr and Mrs Z, as the legal parents of B in this country, both consented to Parental Orders being made in Mr and Mrs K’s favour.

At the time of the hearing, the applicants were 72 years old. Mrs Justice Knowles observed that Mr and Mrs K will both be 89 years old when B turns 18 and that it was therefore foreseeable that their health may decline, resulting in one or both of them becoming incapacitated or dying whilst B is still a child. In the Court’s view, the applicants’ decline in health directly impacted the welfare consideration for B, and so the Court undertook a careful examination of the arrangements the applicants had put in place for him.

The High Court’s decision

The applicants satisfied the criteria for making an application for a Parental Order under s54 of the Human Fertilisation and Embryology Act 2008.

The main issue was what else was required to meet B’s welfare needs. Mrs Justice Knowles specifically highlighted the close and loving relationship between B and the applicants before emphasising that, nevertheless, consideration had to be given as to how B’s welfare needs would be met throughout his life. Given the age of the applicants, and the foreseeability of their declining health during B’s minority, the Court emphasised the need for clarity regarding the arrangements for B’s care and financial support in the event of their death or incapacity.

Mrs Justice Knowles indicated that, before a Parental Order could be made, evidence was required to confirm that the applicants had prepared wills and Lasting Powers of Attorney and that financial and practical arrangements had been made for B’s future care in the event of their death or incapacity. Once this evidence had been provided, and the Court was content with the arrangements in place to secure B’s welfare in the short, medium and long term, a Parental Order was made.

Additional guidance for intended parents embarking on surrogacy arrangements

In granting the Parental Order, the Court provided further guidance for potential parents embarking on surrogacy arrangements. Mrs Justice Knowles added three new factors to the list previously provided in Re Z (Foreign Surrogacy) [2024] EWFC 304 and Re Z (Unlawful Foreign Surrogacy: Adoption) [2025] EWHC 339 (Fam) setting out the issues for parents to consider before pursuing a surrogacy arrangement:

1. What steps have been taken by the intended parents in relation to estate planning (before and after a Parental Order is made) in respect of the child’s future welfare?
    
2. 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 incapacity of one (or both) of the intended parents?
    
3. 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?

These new factors will be particularly relevant for individuals pursuing a Parental Order alone, and those embarking on surrogacy at a later age in life.

What other issues should intended parents consider before pursuing surrogacy?

In addition to the three issues outlined above, the Court has emphasised that intended parents should consider the following factors prior to entering into a surrogacy arrangement:

1. 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?
    
2. When the child is born, will the intended parents be recognised as parents in that country, if so how? By operation of law or are the intended parents required to take some positive step and, if so, what steps need to be taken and when (pre or post birth)?
    
3. What is the surrogate’s legal status regarding the child at birth?
    
4. 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?
    
5. If an agency is involved what role do they play in matching the surrogate with the intended parents?
    
6. What information, preparation or support has the surrogate had about any proposed surrogacy arrangement?
    
7. Does the surrogate speak and/or read English? If not, what arrangements are in place to enable her to understand any agreement signed?
    
8. Will the intended parents and the surrogate meet and/or have contact before deciding whether to proceed with a surrogacy arrangement?
    
9. 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?
    
10. 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?
     
11. In which jurisdiction will the embryo transfer take place and in which jurisdiction will the surrogate live during any pregnancy?
     
12. Can the jurisdiction where the child is to be born be changed at any stage and, if so, by whom and in what circumstances?

13. What nationality will the child have at birth?

14. 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?

15. 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 status once the child has arrived in this jurisdiction?

16. 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.

17. Parties should consider early and meaningful engagement with either or all of HD, Department of Education and/or Department of Health and Social Care (depending on what the particular issues which have arisen are and bearing in mind the different responsibilities of each), especially where there are, or there are intimated proceedings, in some court or tribunal (for example, the First-tier Tribunal (Immigration and Asylum Chamber));

18. In particular, that if proceedings are issued in the Family Court, early consideration should be given to the addition of either or all of HD, Department of Education and/or Department of Health and Social Care (again depending on what the particular issues which have arisen are and bearing in mind the different responsibilities of each) as a party;

Mr and Mrs K v Mr and Mrs Z [2025] EWHC 927 (Fam) is an important judgment in highlighting the Court’s regard for children’s lifelong welfare in the context of granting Parental Orders. It has also provided further guidance for intended parents on the many and varied factors to consider before embarking on a surrogacy journey.

Further information

If you have any questions regarding this blog, please contact Connie Atkinson or Charlotte Daintith in our Family and Divorce team. 

about the authors

Connie is a Partner in the Family and Divorce team and has experience of dealing with all aspects of private family work relating to both finances and children.

Charlotte is a trainee solicitor at Kingsley Napley and is currently in her second seat with the Family and Divorce team. Charlotte joined the firm in September 2024.