The judge said anonymous surrogacy arrangements prevent the court from ascertaining that the mother knows and consents to the application.
A UK High Court of Justice has raised concern about the danger of anonymous surrogacy after a Nigerian couple struggled to secure legal parental status for their child due to the lack of identifiable records on the surrogate mother.
Anonymous surrogacy arrangements allow for the intended parents and the surrogate to not know each other's identities or to have limited direct contact.
These arrangements 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, Lifelink Fertility Clinic, a medical centre in Lagos, Nigeria, facilitated the arrangement.
However, in a ruling delivered last month, the President of the Family Division of the High Court of Justice, Andrew McFarlane, said complications could arise when intended parents opt for surrogacy agreements where the identity of the surrogate remains undisclosed.
Mr McFarlane said anonymous surrogacy arrangements prevent the court from ascertaining that the mother knows and consents to the application.
The UK Human Fertilisation and Embryology Act 2008 makes unconditional and informed consent mandatory.
The judge said the couple's action raises the "suspicion that the arrangement may have been otherwise than it is said to be."
"Whilst Mr and Mrs H have explained their motivation for opting for an anonymous surrogacy, their decision has caused them a great deal of difficulty in presenting the present application."
A complicated surrogacy journey
The couple, Mr and Mrs Houldsworth, who reside in the UK, had experienced legal complications trying to secure the legal parental status of their child. Their struggle lasted about two years before the judge gave his verdict last month.
According to the court document obtained by PREMIUM TIMES, the couple opted for surrogacy in 2022 after trying other medical options without success.
They entered into an arrangement with Lifelink Fertility Clinic in Nigeria, under the guidance of its medical director and opted for anonymous surrogacy, which is allowed in Nigeria.
The court document stated that the couple completed the required documentation with the Nigerian court while the surrogate's identity remained undisclosed throughout the process.
The Houldsworths made this choice because they wished to avoid the crisis often associated with surrogacy between a surrogate mother and the legal parents.
An embryo transplant occurred in mid-2022, and a baby girl was born in 2023. The couple was present during childbirth. Mrs Houldsworth also took a maternity leave and remained in Nigeria for eight months following the birth.
However, trouble began when the new parents began to seek legal status in the UK following their return to the country.
The fertilisation law
Under the UK Human Fertilisation and Embryology Act 2008, the surrogate mother must provide her unconditional and informed consent before a parental order can be issued for the intended parents.
In the case of Mr and Mrs Houldsworth, the surrogate mother remained anonymous, marking the beginning of a complicated surrogacy journey for the couple that lasted two years.
In 2023, the couple formally applied for legal parent status by filing a parental order application supported by a statutory declaration, but they did not receive immediate approval.
While giving his ruling, which granted a parental order in favour of the couple, the court said the struggle of the parents should serve as a cautionary tale for parents considering anonymous surrogacy, particularly in international settings like Nigeria.
The judge highlighted that while the anonymity was intended to provide peace of mind and avoid future obligations, it ultimately created legal obstacles that could complicate parental recognition.
This case comes at a time when the UK remains vigilant regarding international surrogacy and adoption, with special restrictions already in place for adoptions from Nigeria due to concerns over unreliable documentation and potential corruption, the judge said.
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The judge, Mr McFarlane, said those who follow in their footsteps in the future would be well advised to avoid engaging with an anonymous surrogate.
The judge said, "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."
He explained that while the act mandates the provision, it provides an exception for cases where a surrogate "cannot be found."
He said after reviewing extensive evidence, including bank statements, WhatsApp messages and multiple documents related to the surrogacy, it can be ascertained that the couple's effort to reach the surrogates yielded no success.
This comes at a time of vigilance regarding international surrogacy, and adoption has heightened.
The judge stated that restrictions are already in place for adoptions from Nigeria due to concerns over unreliable documentation and potential corruption.
