The English High Court has this year made parental orders in favour of two sets of parents from the UK who have had children born through anonymous surrogacy arrangements in Nigeria, both involving the Nigerian fertility clinic LifeLink.
In Re H (anonymous surrogacy) (2025), Sir Andrew McFarlane, the President of the Family Division, heard a case in which a couple from the UK of Nigerian descent had conceived a baby girl through surrogacy. The surrogate had remained anonymous to the intended parents throughout the process – they had spoken to her on video calls in which she had covered her face, but otherwise had no direct contact with her and did not know anything about her, including her name. She was not named in any of the surrogacy documents and the parents had no direct agreement with her setting out her identity or what financial and other support she would be given.
This raised a number of difficult legal questions for the court, including:
- whether the surrogate truly consented to the making of a parental order more than six weeks after the birth (an absolute requirement of UK law, unless the surrogate cannot be found or is incapable of giving consent),
- whether the surrogate was married, which dictated whether she had a husband whose consent to the making of a parental order was also required,
- how much the surrogate had been paid and what the payments were for (given that the court must authorise any payments which are other than for reasonable expenses), and
- public policy issues which say that, before making a parental order in an international commercial surrogacy case, the court must be satisfied that the surrogate was not exploited or taken advantage of.
The case went on through a succession of court hearings with numerous directions for additional information from both the parents and Dr Kemi at LifeLink, in a process which was clearly lengthy and stressful for the parents. The outcome was – eventually – that the judge made the parental order, having reluctantly concluded that all efforts to find out more about the surrogate had been exhausted without success, and the parental order was necessary to safeguard the child’s welfare. However, it was clearly not an easy decision and the judge published a written judgment as a warning to others. He said:
“Not only does anonymity prevent the court from being able to be satisfied that the mother knows of the application and consents to it, it also raises the level of 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, in fact, caused them a great deal of difficulty in presenting the present application. Those who follow in their footsteps in the future would be well advised to avoid engaging with an anonymous surrogate.”
His warning was not heeded by the parents in the subsequent case of B and C v D and H (2025) which came before Mrs Justice Theis some nine months later in October 2025 and once again involved LifeLink Fertility Clinic in Nigeria. As before, the parents had never met the surrogate who carried their child and had no information about her identity. Again there were significant difficulties as a result, including lengthy immigration complications for the child, and a long delay resolving the parental order application (which took more than 15 months and four court hearings). Mrs Justice Theis reiterated the President’s warning but went further, saying that any parents who deliberately chose an anonymous surrogacy arrangement in light of the warnings made may not ultimately get a parental order. She said:
“This court has made clear in a number of recent cases the importance of the intended parents meeting the surrogate and, if possible, having an independent means of contacting the surrogate…
If, for example, there is evidence that the intended parents embarking on such a surrogacy arrangement were aware of these concerns but nevertheless continued with such an arrangement (where they did not meet or have means of contacting the surrogate) knowing of the risks, that may be grounds for the court to consider whether it can, in such circumstances, determine the surrogate cannot be found. The court may also need to consider whether there are wider public policy issues engaged in such a situation. The court in those circumstances may have to consider whether it can or should make a parental order.
The message delivered by the President in Re H (ibid) at paragraph 20 should be heard loud and clear by intended parents considering whether to embark on a surrogacy arrangement that they “…would be well advised to avoid engaging with an anonymous surrogate”.
This can be taken as a very clear warning that the court is likely to be less and less sympathetic to parents who engage in anonymous surrogacy arrangements in Nigeria.
Why is anonymity in surrogacy such a problem?
It is not just the technical legal issues around getting documents signed and authorising payments which make anonymous surrogacy arrangements problematic. There are significant ethical concerns. If the parents of a child have never met the woman who carried him or her, they are wholly reliant on what the clinic or agency has told them about her circumstances with no way of verifying it. How do they really know their surrogate was willing, gave consent and treated with care and respect through the surrogacy process? Where are the safeguards to ensure that she wasn’t vulnerable or exploited, particularly in a country where poverty and corruption are endemic, and surrogacy agencies are operating for profit?
The English family court is always placed in a difficult position in having to police such issues after the event, at a time when the child’s welfare is of course its paramount consideration. However, intended parents have a clear responsibility to ensure that their much-wanted child was born through a process that was ethical, and that no one was harmed in the process, and they should take very seriously warnings like the ones given in these cases by the High Court.
Our experience of surrogacy in Nigeria
We have been involved in much more straightforward (unreported) Nigerian surrogacy cases where the parents have had direct contact with their surrogate, the opportunity to build a relationship with her, and the ability to confirm her consent and reassure the court that she was not exploited or taken advantage of. Anonymity is not an inevitable part of surrogacy in Nigeria, and we would encourage intended parents to insist on more open and transparent arrangements, and to take every precaution they can to ensure that the woman who carries their child is informed, consenting and well supported. It is possible to do surrogacy in a safer way, one that will mitigate concerns about the ethics, and in so doing help families avoid significant immigration delays and complex lengthy court applications like these ones.
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