This is a guest post by Salomé Ashenden. Salomé holds a Postgraduate Diploma in Law (PGDL) from BPP University and an MSc in Science Communication from Imperial College London. She has experience working as a paralegal and supporting litigants in person, and is due to begin the Bar Course at the Inns of Court College of Advocacy (ICCA) in September 2026. She is particularly interested in clarity, transparency, and public understanding of the justice system.
Imagine you’ve spent years trying to have a child.
IVF doesn’t work.
You lose twins shortly after birth.
Eventually, a family friend offers to become your surrogate.
Nine months later, you bring your newborn twins home and finally begin settling into family life.
Then, just a few months later, a DNA test reveals that neither of you is biologically related to your babies. The fertility clinic had used the wrong sperm.
Surely the law would recognise you as the children’s parents?
If you answered ‘of course’, you’re probably not alone.
Yet that is precisely the situation a British couple recently found themselves in after discovering the fertility clinic abroad has mistakenly used donor sperm instead of the intended father’s.
This particular case raises an important question that many people have probably never considered: what actually makes someone a legal parent in England and Wales?
Contrary to what many people might assume, the intended parents do not automatically become the child’s legal parents when the baby is born. Instead, they normally apply to the Family Court for what is known as a Parental Order. This order, if successful, transfers legal parenthood from the surrogate to the intended parent or parents. Once it is granted, the intended parents become the child’s legal parents for all intents and purposes.
There is however one important condition. At least one of the intended parents must have a genetic connection to the child.
In most surrogacy arrangements, this isn’t normally an issue. Often, the intended father’s sperm or the intended mother’s egg is used to create an embryo.
But in this particular scenario, [by accidentally substituting donor sperm] the clinic’s error deprived the intended parents from any biological connection to the children, thus making the process of applying for a Parental Order virtually impossible.
So, if the intended parents could not obtain a Parental Order, who did the law recognise?
In England and Wales, the woman who gives birth is deemed the child’s legal mother, regardless of whether she has any genetic connection to the baby or intends on raising the child. On top of this, if she is married or in a civil partnership, her spouse or civil partner may also be recognised as the child’s second legal parent.
Therefore, In this case, because the statutory requirements for a Parental Order could no longer be met, the court had to look for another solution.
Giving judgment in PP & Anor v RR (leave to withdraw parental order application) [2026] EWFC 172 Mr Justice Peel accepted that the intended parents had done nothing wrong. They had relied on the assurances given by the fertility clinic, had welcomed the twins into their family from birth and had cared for them ever since. The court had no doubts that they were the children’s day-to-day parents. The difficulty however laid elsewhere: Parliament imposed specific legal requirements for a Parental Order, and the court simply had no power to dispense with them.
That did not mean, however, that the law offered no protection. The central question before the court was no longer whether the intended parents should raise the twins, everyone agreed that they should, but how the law could recognise that reality.
To ensure the children’s immediate welfare and legal security, Mr Justice Peel first made Child Arrangements Orders confirming that the twins would continue living with the intended parents and granting them parental responsibility. He then gave the couple permission to adopt the children.
That outcome may seen surprising. After all, adoption is usually associated with children who need a new family, not with parents who have loved and cared for a child since the day they were born. Yet, in these wholly exceptional circumstances, adoption became the only legal mechanism capable of recognising the family that already existed in practice.
The law surrounding surrogacy can seem surprisingly technical, particularly when arrangements involve more than one country. Yet cases such as this one (PP and another v RR) show why those legal rules matter.
They are not simply administrative hurdles. They determine who can make decisions on behalf of a child, who is recognised as a parent, and how the law protects families when things do not quite go according to plan.
Most intended parents will never encounter circumstances as extraordinary as those in this case. But understanding the legal framework before beginning a surrogacy journey, and seeking independent legal advice where appropriate, may help avoid uncertainty later on.
As Mr Justice Peel’s judgment illustrates, even where the law cannot provide the outcome everyone expected, it will ultimately attempt to seek a solution that places the child’s welfare first.
Image: Twins: Greta Fotografia – Pexels