Mavis Amonoo-Acquah in X v W & Anor [2025] EWFC 25
25th Mar 2025 | Cases
Mavis Amonoo-Acquah, instructed by Griffiths Robinson, recently acted on behalf of the Second Respondent Child through his Children’s Guardian in X v W & Anor [2025] EWFC 25; an application for parental order in relation to a child born following a surrogacy arrangement in Cyprus.
The applicant, X, had applied for a parental order for Z following a multi-jurisdictional surrogacy arrangement; the application had been supported by the Guardian. While the parental order was successfully granted, the court set out a warning for intended parents seeking to embark on surrogacy arrangements without proper legal advice.
Facts Having become heavily involved in caring for his niece following the death of his sister, X decided to have a child of his own via a surrogate. The surrogacy arrangement which X entered into was complex and crossed a number of jurisdictions. X engaged the services of a surrogacy agency registered in Northern Cyprus (the Agency) and a clinic based in Israel (the Clinic). W, the surrogate was a Kyrgyzstan national who travelled to the clinic in Northern Cyprus for the transfer of the embryo which was created with X’s gametes and a donor egg. X’s understanding was that his child, Z would be born in Czech Republic. X did not take any legal advice regarding the consequences of the arrangement.
During the pregnancy, the Agency informed X that contrary to X’s wishes, the birth should take place in Moldova. X said that he felt he had no choice but to agree to this. He reported being told by the Agency after he had arrived in Moldova, that surrogacy was not permissible there and that he must therefore pretend to be W’s partner. After Z’s birth, X struggled to obtain the emergency travel documents required to bring Z to the UK, therefore for a period of time, X and Z found themselves stranded in Moldova.
Judgment Mrs Justice Theis set out that five of the seven criteria in s54A of the Human Fertilisation and Embryology Act 2008 which needed to be established before the court could consider whether to make a parental order, were readily established on the evidence. The criteria which required more consideration were whether the surrogate gave her consent (s54A (5) and (6)) and whether the court was required to authorise any payments made to W other than for expenses reasonably incurred (s54A(7)).
In relation to the question of consent, the evidence provided was a translated document entitled ‘agreement to the making of a parental order’, signed by W and a notary but missing a notary stamp. The Guardian had spoken to W and was satisfied that she had freely signed the document and understood the implications of a parental order. Further, X provided the court with the messages exchanged between himself and W in relation to arranging for the consent document to be notarised. Taking these factors into account, the judge held that W had given her consent in a way which met the requirements of s54A(5) and (6).
In relation to the requirements of s54A(7), the court set out that X had paid the Agency over €30,000 and an additional €6,000 to a person identified by the Agency. X made no direct payments to the surrogate. The agreement between X and W, entitled ‘Non-Commercial contract’ specified that W would receive €10,000 ‘related to her temporary non-working capacity during pregnancy’ and an additional €350 per month. W originally informed the children’s guardian that she had not received any payment. The Agency confirmed that W had in fact received €15,000. The court was therefore able to take judicial notice of the surrounding evidence, to establish that X had made payments relating to proper expenses to the surrogate, per the agreement and thus retrospectively authorised the payments made.
When considering whether any public policy issues were raised, the court held that X was ‘extremely naïve’ in entering the arrangement without being clear as to where the child would be born, his rights in relation to that, and the legal frameworks in the relevant jurisdictions. The court had the benefit of legal advice from a licensed attorney in Moldova which confirmed that surrogacy may be considered illegal in her country. The court held that the Agency and the Clinic had not acted transparently in setting out the implications of the various options to X. At [41], the judge stated:
‘What took place in this surrogacy arrangement, with the seemingly reckless disregard of the cross jurisdiction implications of the arrangement, overseen by two essentially commercial organisations, causes the court enormous concern… However, having considered the evidence as a whole I do not consider he (X) acted other than in good faith.’
Despite the judge’s ‘real reservations’ regarding the arrangement that X had embarked upon, the court acknowledged that Z is thriving in x’s care and in turn, Z’s lifelong welfare needs would be met by the making of a parental order.
This summary was written by Imogen Pitts.
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