Late-life parenthood through surrogacy: A right or a risk?
In the UK, increasingly, there are a wide range of people of different ages and backgrounds that wish to start a family via a surrogate. In particular, it has been reported that there appears to be a growing number of UK citizens over the age of 70 who are applying for parental orders through surrogacy, sparking ethical and legal debates. In the last 4 – 5 years, the Court have seen several applications coming from men aged 70 - 80 and women aged 60 - 80, seeking legal recognition as parents of surrogate-born children.
Critics, including anti-surrogacy campaigners, argue that late-life parenting through surrogacy may not serve the best interests of the child, especially considering the potential for the parents to pass away before the child reaches adulthood.
A notable case, K & Anor v Z & Anor [2025] involved a couple, both aged 72, who were granted a parental order for a 14-month-old boy born via surrogacy in California.
The couple, referred to as Mr and Mrs K, applied for a parental order in the UK after their son was born via gestational surrogacy in California in January 2024. The child was conceived using Mr K’s sperm and a donor egg and born to a surrogate matched through a Californian agency. The couple then returned to the UK in March 2024, and the child travelled on a US passport naming them as parents. Despite judicial concerns about the couple’s age and life expectancy, the order was approved.
Legal Framework
The application was made under Section 54 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008), which governs parental orders in England and Wales. By way of summary, the current law requires:
- The applicants to be over 18.
- The child to be living with the applicants.
- The surrogate and her partner (if any) to consent.
- The application to be made within six months of birth.
Notably, there is no upper age limit for intended parents under this legislation, which has sparked concerns.
Applications can also be made by an individual under Section 54(a) of the HFEA 2008 where they have a genetic connection to the child.
Judicial Concerns
Mrs Justice Knowles, who presided over the case, expressed serious concerns about the couple’s age, commenting:
“Put starkly, Mr and Mrs K will both be 89 years old when B reaches his majority… 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. That reality has a direct impact on B’s welfare.”
Because of this, the court delayed granting the order until robust care plans were in place for the child’s future, thinking about the child’s welfare and a contingency plan should the worst-case scenario happen.
Despite these concerns, the judge emphasised that the child’s welfare is paramount, and that the couple had shown transparency and commitment. The child was described as “much loved and cherished” by the parental order reporter, however the Judge did highlight the need for intended parents to reflect carefully before embarking on a surrogacy journey, adding:
“I urge intended parents of advanced years or single applicants to reflect very carefully indeed on those welfare matters I have highlighted… before they embark on a surrogacy journey and cause a child to be born.”
Legal and Ethical Implications
Needless to say, this case highlights several key issues:
- Absence of age restrictions in UK surrogacy law may lead to ethically complex scenarios.
- International surrogacy arrangements can complicate legal oversight, especially regarding payments exceeding UK limits.
- The case sets a precedent for judicial discretion, where welfare planning can override age-related concerns.
It is clear from this case that some thought will need to be given to statutory guidance on age and long-term caregiving capacity going forward. Considerations which perhaps should be added to the list for governmental review, which are yet to take place. The debate continues over balancing reproductive rights with child welfare, as reports push for clearer regulations and ethical oversight in surrogacy practices.
Late-life parenthood through surrogacy invites us to reflect deeply on the tension between personal longing and long-term responsibility. For some, the dream of becoming a parent doesn’t fade with age—but the reality for the child born into that dream may be far more complex. The possibility that elderly parents may not live to see their child grow up raises profound questions about emotional security, stability, and the social challenges a child might face, including early bereavement or even becoming a young carer.
Legal commentary, including from Resolution’s Vision for Family Justice, has called out the current surrogacy framework as outdated and unclear on age-related risks. Yet, despite growing concern, the government has stated that reform is not a priority—leaving judges to navigate these sensitive cases with limited guidance.
If reform does come, it won’t be simple. A fixed age limit may seem straightforward, but it risks oversimplifying a deeply personal and ethically layered issue. A more nuanced approach—such as requiring care plans, psychological assessments, or enhanced scrutiny for older applicants—could offer a middle ground. However, with many couples turning to overseas surrogacy agencies, much of this responsibility may fall outside UK jurisdiction, leaving judges to make difficult decisions to protect children’s futures.
As this case shows, the law must evolve not just to reflect the realities of modern families, but to safeguard the welfare of the children at their heart. Until then, the courts will continue to walk a delicate line—balancing compassion with caution, and rights with risks.
At Irwin Mitchell, one of our specialist family lawyers will be able to answer any questions you might have, in the ever-growing area of surrogacy law in England and Wales.
