The unusual case of PP & Anor v RR [2026] EWFC 172 is an example of potential complexities - and legal solutions – in a case of international surrogacy. This case sets out the approach of a court in England where twins born via surrogacy turned out not to be biologically related to either of the intended parents.
In this case, a married couple living in the UK, arranged to have children via international surrogacy with a surrogate who lived in Sri Lanka. They understood that the embryos had been created using a donor egg and the intended father’s sperm. This understanding was confirmed by the fertility clinic who were assisting them. The surrogate gave birth to non-identical twins who were passed to the intended parents’ care at birth. Upon returning with the twins to the UK the intended parents applied to the English court for a parental order. A parental order is a legal order which recognises the applicants as the parents of the children in the UK. Until a parental order is granted, in the UK the surrogate (and her spouse if she is married) is the legal parent of a child born via surrogacy. This is the case even if the surrogate has no genetic connection to the child and where orders have been granted in the country the child was born in favour of the intended parents.
However, in this case, before the parental order application could be determined, a DNA test carried out as part of the children's British citizenship application showed that the intended father was not biologically related to the children. Following enquiries made with the fertility clinic it became apparent that the clinic may have used donor sperm as well as a donor egg. This meant that neither intended parent was genetically connected to the children.
Why was this a problem?
The law throughout the UK (enshrined in the Human Fertilisation and Embryology Act 2008) establishes that for a parental order to be granted the gametes of at least one applicant must have used to create the embryo. Because both the egg and (contrary to what the intended parents had understood) the sperm came from donors, neither applicant met this requirement. This meant that the court had no power to grant a parental order even though the children had lived with the applicants since they were born and the surrogate was content for orders to be granted in favour of the applicants.
What was the outcome?
In this case the court granted the intended parents leave to withdraw their parental order application in light of the results of the DNA test. At the same hearing, the court granted them leave to apply for an adoption order. Ordinarily, in England a private adoption applicant who is not a parent, step-parent, relative, local authority foster parent, or someone with whom the child was placed by an adoption agency must have had the child living with them for at least three years within the preceding five before applying to adopt the child.
However, the court has a discretion to grant leave to apply sooner, which is what happened here. The court found the application had a real prospect of success and was in the children's interests, and so it gave leave to apply immediately.
In the meantime, and in an entirely child centred approach the court made a joint child arrangements ("lives with") order, giving the intended parents parental responsibility (shared with the surrogate) pending the adoption application. This meant that the children were not left without anyone able to make decisions for them in the UK.
Would the same outcome have been likely in Scotland?
The law relating to parental orders (the Human Fertilisation and Embryology Act 2008) applies throughout the UK. This means that the courts of Scotland would be bound by the same restrictions when considering an application for a parental order in these circumstances as the courts of England & Wales. This means that if a child born via surrogacy has no biological connection to either applicant, a Scottish court would face the same statutory barrier under the Act and would be unable to grant a parental order.
The main difference between the options available to the court in Scotland and in England and Wales is the length of the default residence period before an adoption application can be made. In Scotland the default position for applicants who are not a stepparent, relative, or otherwise placed by an adoption agency is that the children must have had their home with the applicants for a continuous period of twelve months before an adoption order is made, compared with three years (within a five-year period) as the default in England. As in England, a Scottish court would still need to grant an interim order to confer parental responsibility on the applicants for that intervening period.
We cannot know for sure what the Scottish courts would do if presented with a similar case unless or until a similar question arises here. However, it is likely that the court would consider granting leave to withdraw an application for a parental order and consider granting an order for adoption in Scotland as it did in England in these circumstances.
Given the complexities surrounding surrogacy law it is important to seek independent legal advice prior to entering into a surrogacy arrangement either in the UK or abroad. If you would like to speak to a member of our family law team, please get in touch.
Originally published 5 August 2026.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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