A UK High Court of Justice has expressed concern over the risks associated with anonymous surrogacy after a Nigerian couple struggled for two years to secure legal parental status for their child due to the absence of identifiable records on the surrogate mother.
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Anonymous surrogacy arrangements allow intended parents and the surrogate to remain unaware of each other’s identities or have minimal direct contact. These agreements are often facilitated by surrogacy agencies or legal representatives who act as intermediaries. In the case of the couple identified as Mr. and Mrs. Houldsworth, the arrangement was facilitated by Lifelink Fertility Clinic, a medical center in Lagos, Nigeria.
However, in a ruling delivered last month, the President of the Family Division of the High Court of Justice, Andrew McFarlane, warned that complications could arise when intended parents enter surrogacy agreements where the surrogate’s identity remains undisclosed.
McFarlane emphasized that anonymous surrogacy arrangements prevent the court from verifying that the surrogate mother is aware of and consents to the application for legal parental status. The UK Human Fertilisation and Embryology Act 2008 mandates unconditional and informed consent in such cases.
The judge noted that the couple’s approach raised “suspicion that the arrangement may have been otherwise than it is said to be.” He stated, “Whilst Mr. and Mrs. H have explained their motivation for opting for anonymous surrogacy, their decision has caused them a great deal of difficulty in presenting the present application.”
Mr. and Mrs. Houldsworth, who reside in the UK, turned to surrogacy in 2022 after unsuccessful attempts with other medical options. They entered an agreement with Lifelink Fertility Clinic in Nigeria under the guidance of its medical director, choosing an anonymous surrogacy arrangement permitted under Nigerian law.
According to court documents, the couple completed the required legal paperwork in Nigeria, but the surrogate’s identity remained undisclosed throughout the process. Their decision was driven by a desire to avoid potential conflicts often associated with surrogacy between the surrogate mother and the intended parents.
An embryo transfer took place in mid-2022, and the couple welcomed a baby girl in 2023. They were present at the birth, and Mrs. Houldsworth took maternity leave, staying in Nigeria for eight months following the child’s birth.
However, their challenges began upon returning to the UK, where they sought to secure legal parental status. Under the UK Human Fertilisation and Embryology Act 2008, a surrogate mother must provide unconditional and informed consent before a parental order can be granted to the intended parents. In their case, the surrogate’s anonymity made this requirement difficult to fulfill, leading to a prolonged legal struggle.
In 2023, the couple formally applied for legal parental status by filing a parental order application supported by a statutory declaration. However, they faced delays due to the lack of the surrogate’s identifiable records.
While ultimately granting the parental order in favor of the couple, the court emphasized that their ordeal should serve as a cautionary tale for others considering anonymous surrogacy, particularly in international contexts like Nigeria.
Judge McFarlane highlighted that while anonymity in surrogacy arrangements may be intended to provide peace of mind and avoid future obligations, it often creates significant legal barriers that can complicate parental recognition.
The case emerges at a time when the UK is increasingly cautious about international surrogacy and adoption. The judge reiterated that special restrictions are already in place for adoptions from Nigeria due to concerns over unreliable documentation and potential corruption.
He advised prospective parents against engaging in anonymous surrogacy, stating, “Having now received pieces of information and evidence from Mr. and Mrs. H, bit by bit, over a series of hearings, and particularly having now, at last, had sight of the purported surrogacy agreement, the court is in a position to determine the application.”
McFarlane explained that while the law mandates informed consent, there is an exception in cases where the surrogate “cannot be found.” After reviewing extensive evidence, including bank statements, WhatsApp messages, and multiple documents related to the surrogacy, the court concluded that the couple’s efforts to locate the surrogate had been unsuccessful.
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