A judge has delivered a stern warning of the risks of anonymous surrogacy arrangements in the case of B and C v D and H [2025] EWFC 366; echoing similar previous cases including Re H (Anonymous Surrogacy) [2025] EWHC 220 and Re QR (Parental Order: Dispensing with Consent: Proportionality) [2023] EWHC 3196.
The matter related to intended parents who engaged a fertility centre in Nigeria following several failed pregnancies. Mrs Justice Theis DBE presided over an application for a parental order concerning a child, H, born via a surrogate.
The timeline for the case starts in 2023 when B and C engaged Lifelink Fertility Centre in Nigeria for surrogacy using donor eggs and B’s gametes. In April a surrogacy agreement was signed with a surrogate identified as “G.D.” The applicants never meet her and she remains anonymous through the case which throws up issues further down the line. A first embryo failed in July 2023. In August 2023, without formal agreement, a second surrogate was introduced. In September 2023 the first surrogate falls pregnant and in Match 2024 H is born in Nigeria. Over the course of the following months B and C return to the UK with H who is granted a Right of Abode certificate and in June a parental order application is filed.
Here the application stalls as the anonymity of the surrogate prevents a consent order from being granted, which in turn sees an application for a passport rejected. Without evidence of consent both applications can go no further.
Attempts to contact the clinic for further evidence, including asking the clinic to send the surrogate the C51 and A101A were met with obfuscation. The surrogate wished to remain anonymous and threatened legal action to remain so. In a previous hearing HHJ Theis had notified the Secretary of State for the Home Department (SSHD) of the application in case there was appetite for intervention. No such representations were necessary and in October the Parental Order was granted after the court found the applicants met the criteria under Section 54 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008). To tackle the issue of consent HHJ Theis applied the principles from Re C (Surrogacy: Consent) [2023] EWCA Civ 16 and Re D and L (Surrogacy) [2012] EWHC 2631, which require:
- Reasonable efforts to locate the surrogate.
- Evidence of prior consent (limited weight).
- Child’s welfare as paramount.
Justice Theis concluded that all reasonable steps had been taken to locate the surrogate, who had signed a witnessed agreement relinquishing parental rights. The Clinic obstructed further contact, and the surrogate’s anonymity was confirmed. Therefore, the court found she “cannot be found” under s54(7), allowing the order to proceed without her consent.
The written judgement pointedly, and throughout, counsels against the use of anonymous foreign surrogates which in this case caused significant delays, immigration complications, and emotional distress for the applicants
Justice Theis reiterated the importance of the checklist provided by Gwynneth Knowles J in Mr and Mrs K v Mr and Mrs Z [2025] EWHC 927, which outlines critical considerations for surrogacy arrangements, including legal frameworks, surrogate consent, and post-birth procedures. The court stressed that these safeguards are essential, especially in international surrogacy cases.
