Surrogacy Arrangements In Northern Cyprus: Risks, Lessons From Z (Foreign Surrogacy) [2024] EWFC 304 And Practical Guidance For Intended Parents

Surrogacy Arrangements abroad have become increasingly popular over the years due to the affordability and relative ease of access to surrogates via commercial arrangements. In England and Wales, commercial surrogacy is prohibited. While payments beyond reasonable expenses are not generally permitted, the court retains the power to retrospectively authorise payments made in overseas surrogacy arrangements when considering a parental order. This article focuses on Northern Cyprus as a surrogacy destination, the risks and the key takeaways from the case of Z (Foreign Surrogacy) [2024] EWFC 304 and the importance of legal advice when multiple jurisdictions are involved.

Proceeding with caution

It is important to note that Northern Cyprus does not have a dedicated statutory framework regulating surrogacy in the way that some recognised surrogacy jurisdictions do. Intended parents should therefore proceed with caution and check which part of Cyprus the agency and/or medical facilities are located in as this will affect the governing law (or lack of). It will be essential to obtain specialist legal advice regarding parentage, immigration and nationality issues if considering this destination in order to avoid any issues.

Where should UK-based Intended Parents start if they are considering surrogacy in Northern Cyprus?

In view of the risks, it is recommended from the outset to do your due diligence including:

Legal Advice

• Taking English legal advice from a family solicitor on the parental order you will need to obtain once returning home to the UK before entering into the surrogacy arrangement
• Taking legal advice in relation to immigration law before entering into the surrogacy arrangement so that timeframes are known for obtaining passports for onward travel and entry clearance to England
• Obtaining local legal advice regarding registering the birth and obtaining the birth certificate, exiting the country with the child and any other documentation you require from the surrogate and naming you as legal parents

The Process

• Identifying a fertility clinic with care – there is no central regulatory body in Northern Cyprus which means the process is not being overseen by any authority and subject to certain standards
• Asking questions about the screening of the surrogates – where do they live, what is their nationality and where will the baby be born?
• Asking questions about what advice the surrogate receives and how will you show their consent is valid to the English Court – what documents are used to evidence consent?
• Clarifying what the process will cost and what is the surrogate paid – payment structures may be unclear and this needs to be explained/documented to the English Court

The Birth

• Understanding that the surrogate will classed as the mother at birth under English law – therefore ask if she is married – if she is, her husband will be classified as the second parent at birth and therefore the Intended Parents may not have parental responsibility
• Understanding the arrangements for birth – the location of the hospital and how you will leave with the baby

The following case illustrates the potential difficulties that can arise when the above steps are not followed and is included as cautionary guidance:

Z (Foreign Surrogacy) [2024] EWFC 304

Facts

• The intended parents were a male same sex couple A and B.
• A was from a country where homosexuality was illegal and came to England in 2013 and had indefinite leave to remain.
• B moved to England in 2016 and was also from a country where homosexuality is not permitted and had EU settled status to remain living in England.
• Neither A nor B had any intention to return to their home countries.
• A and B became civil partners in 2018 and purchased a property.
• A and B contacted an agency (SurrogateBaby Agency) that was stated to be in Cyprus and a contract was signed.
• In fact, the agency was not based in Cyprus, but A and B were told all procedures would take place in Cyprus.
• A and B paid €64,000 for a “premium package” which came with a guarantee they would become parents. This came with unlimited embryo transfer attempts and payments were staggered through the process.
• The agency knew A and B were a couple but suggested A register himself as a single father to “avoid any issues”.
• A and B assumed that the laws of the agency country (not Cyprus) would not apply and were encouraged to believe that the location of the agency was unimportant.
• A’s gametes were combined with an egg donor’s eggs to create embryos. These fertility procedures took place in Northern Cyprus.
• The surrogate came from the agency country, not Cyprus, and had been a surrogate previously. She was divorced.
• A signed a contract with the surrogate stating the embryo transfer would take place in a facility in Northern Cyprus.
• The transfer was completed in Northern Cyprus and the surrogate returned to her home country (not Cyprus) for the pregnancy where A and B’s relationship was not permitted.
• A was receiving advice from an English Solicitor and contacted the agency to request specific documents and to arrange a passport for the child.
• The agency stated that the birth could not take place in the surrogate’s home country due to a war. The birth would therefore be in either Cyprus or another country for a fee of €14,000.
• The child was born in the alternate country (not Cyprus) due to assurances about the ease of obtaining a passport there. A and B travelled to that country for the birth.
• The child was placed in A’s care post-birth but B had to return to England for work.
• A and the surrogate registered the birth in the country of birth (not Cyprus) and were both named as parents.
• The surrogate did not know A and B were in a same-sex relationship until after the birth. A and B were not aware of this lack of knowledge.
• The surrogate signed a power of attorney allowing A to travel with the baby to his home country (not Cyprus or England) to stay with paternal grandparents as his visa in the birth country was coming to an end and he could not re-enter England due to a lack of travel documents.
• A then stayed in his home country until he could obtain the correct travel documents to enter the UK with the baby.
• The total paid to the agency was €71,500 (not including other expenses).
• On return to England, the baby had A as a father and the surrogate as a mother. A and B applied for a parental order.
• B had no legal status/parental responsibility despite parenting the child for over a year at the time of the final hearing.
• A and B met the criteria for a parental order save the following question marks:
  • the application for the parental order being more than 6 months after birth
  • whether A or B were domiciled in England when they made the application
  • the surrogate’s consent
  • whether payments were expenses reasonably incurred
• The final outcome was that it was in the baby’s best interests to make the order.
• The fact that the surrogate offered to have a sibling for A and B is notable as to consent.
• The Guardian was also able to speak with the surrogate via a translator and was satisfied with the consent given.
• The expenses were undoubtedly compensatory in nature (ie. not just reasonable expenses) to the surrogate, but the court authorised them due to A and B relying on the advice of the agency and acting in good faith.
• It was submitted that A and B were not trying to deceive or exploit the surrogate about their relationship as they thought the birth would proceed in Northern Cyprus where their relationship was legal.
• The case illustrates that A and B had entered into this surrogacy arrangement with a degree of naivety and took significant risks in the pursuit of parenthood.
• The nature of A and B’s relationship and the fact it was Illegal in the country of birth and not known to the surrogate did not sit well with the Judge.

The checklist to consider from Judge Theis is as follows:

(1) What is the relevant legal framework in the country where the surrogacy arrangement is due to take place and where the child is to be born? Put simply, is such an arrangement permitted in that country?

(2) When the child is born will the intended parents be recognised as parents in that country, if so how? By operation of law or are the intended parents required take some positive step and, if so, what steps need to be taken and when (pre or post birth)?

(3) What is the surrogate’s legal status regarding the child at birth?

(4) If the surrogate is married at the time of the embryo transfer and/or the child’s birth what is the surrogate’s spouse’s legal status regarding the child at birth?

(5) If an agency is involved, what role do they play in matching the surrogate with the intended parents?

(6) What information, preparation or support has the surrogate had about any proposed surrogacy arrangement?

(7) Does the surrogate speak and/or read English? If not, what arrangements are in place to enable her to understand any agreement signed?

(8) Will the intended parents and the surrogate meet and/or have contact before deciding whether to proceed with a surrogacy arrangement?

(9) When will the agreement between the intended parents and surrogate be made, before or after the embryo transfer, and what are the reasons for it being at that time?

(10) What arrangements are proposed for contact between the intended parents and the surrogate during the pregnancy and/or after the birth? For example, is it only via the agency or can there be direct contact between the intended parents and the surrogate.

(11) Which jurisdiction will the embryo transfer take place and which jurisdiction will the surrogate live in during any pregnancy?

(12) Can the jurisdiction where the child is to be born be changed at any stage and, if so, by whom and in what circumstances?

(13) What nationality will the child have at birth?

(14) Following the birth of the child what steps need to be taken for the child to travel to the United Kingdom, what steps need to be taken to secure any necessary travel documentation for the child and how long does that take?

(15) Will the intended parents need to take any separate immigration advice to secure the child’s travel to the United Kingdom and what is the child’s status once the child has arrived in this jurisdiction.

(16) Finally, keeping a clear and chronological account of events and relevant documents is not only important for the purposes of a parental order application but also, importantly, retains key information regarding the child’s background and identity.