28-05-2025
Elderly couple in their 70s become legal parents of surrogate baby boy despite judge's fears they could die before he reaches 18
A couple in their 70s has been granted a court order to become the legal parents of a 14-month-old surrogate baby boy - despite a judge's concerns they could die before the child reaches 18.
The husband and wife, both aged 72, applied to the courts for a parental order in July after the baby was born six months earlier to a surrogate in California using the husband's sperm and a donor egg.
In a written judgment handed down last month in the family division of the High Court, it said the application by the couple - referred to only as 'Mr and Mrs K' - was allowed on March 28.
Mrs Justice Knowles said that she had made her judgment public because it raised an 'important welfare issue and offers some advice for those who may, in future, engage in a foreign or other surrogacy arrangement'.
She added that it was an 'undeniable fact' that when the child - referred to as 'B' - started primary school, Mr and Mrs K would be both aged 76.
'Put starkly, Mr and Mrs K will both be 89 years old when B reaches his majority [18 years old],' she said.
'They have begun parenting at a time in their lives when, despite their current good health, it is foreseeable that their health will decline and that one or both of them will become seriously incapacitated or die before B reaches his majority.'
However, despite her concerns, the judge granted the parental order to give 'permanence and security' to the child's care arrangements 'in circumstances where no one else other than Mr and Mrs K seek to provide lifelong care for him'.
It is the third such case to emerge in the last year where a 'parental order' has been given to British 'intended parents' in their sixties and seventies for children born to surrogate mothers abroad.
In the court papers, first reported by The Times, it was described how Mr and Mrs K, a 'wealthy' retired couple, decided to have a surrogate baby after their son 'A' died from cancer in 2020 shortly before he turned 27. They had conceived 'A' following several rounds of IVF.
In autumn 2022, Mr and Mrs K identified an egg donor and in early 2023 they were matched with a surrogate through a surrogacy agency in California, with 'B' then born in January last year.
The couple were in the United States at the time of the birth and returned to the UK in March 2024, with 'B' travelling on a US passport naming them as the parents.
Mr and Mrs K paid just over £151,000 to the surrogate mother and the agency, of which just £24,635 was deemed to be 'reasonably incurred' by the court, according to the judgement.
Mr and Mrs K have made provisions in their will for friends of their deceased son - a couple in their early thirties - to become 'B's' legal guardians if they die or are unable to look after the child.
The judgment adds that the couple are looking after the child with the help of a full-time nanny and that the boy was said to be in good health.
There is no legal age limit for so-called 'intended parents' in surrogacy arrangements in the UK, but campaigners have condemned the trend of older people having babies through surrogates.
Lexi Ellingsworth, co-founder at Stop Surrogacy Now UK, said this case demonstrates the 'flaws' in the current law when it comes to surrogacy arrangements in the UK.
She added: 'There are no upper age limits for commissioning parents in the UK, or for surrogate mothers, and the 'parental order pathway' would continue to allow Britons to go abroad to buy babies.
'This appalling loophole which enables people to get around our domestic ban on commercial surrogacy practices must be closed by the Government immediately.'
Surrogacy Concern founder Helen Gibson said the case was appalling and called on the Government to ban international surrogacy, which happens through commercial deals rather than the 'altruistic', not-for-profit surrogacy allowed in the UK.
