What is surrogacy?
The Human Fertilisation & Embryology Authority (“HFEA”) describes surrogacy as “when a woman carries and gives birth to a baby for another person or couple”.
There are several reasons why an individual or couple may wish to become parents via a surrogate. Surrogacy may be suitable for women with certain medical conditions that make it difficult and/or dangerous for them to become pregnant, carry the pregnancy and give birth. Surrogacy is also an option for male same-sex couples who want to have a family and for people without a partner. Surrogacy refers to the process whereby a woman becomes pregnant with a child subject to an arrangement (entered into before becoming pregnant) to transfer the child to another person or persons who will become the child’s legal parents.
There are two different types of possible surrogacy arrangements:-
- Full surrogacy – a host/gestational surrogacy arrangement: this is where the surrogate has no biological link to the child. Instead, the intended parents may be the biological parents of the child or the child may be conceived with either eggs or sperm from a donor; and
- Partial surrogacy – a straight/traditional surrogacy arrangement: this is where the surrogate is the child’s biological parent and she uses her own eggs, together with the sperm from the intended father or from a donor.
Although surrogacy is legal in the UK (albeit subject to some restrictions), surrogacy agreements are not legally enforceable.
In the UK, surrogacy is treated as an altruistic exercise. As a result, it is illegal to pay a surrogate anything other than their reasonable expenses. In contrast, in other places/countries (such as in certain US states) commercial surrogacy is legal. Consequently, using a surrogate abroad can be complicated as legal arrangements differ from country to country and as a result, the act of bringing the child back to the UK can sometimes be both a challenging and lengthy process. It is therefore always best to ensure that before taking any steps of substance, you are fully informed as to the holistic legal position.
The Legal Rights of Intended Parents and Surrogates
If using either of the above two surrogacy arrangements in the UK, the surrogate will be the child’s legal parent at birth. Furthermore, determining who the second legal parent is at birth will depend on individual circumstances. By way of example, unless they have provided their permission (i.e. they did not consent to the surrogate’s treatment), if the surrogate is married or in a civil partnership, their spouse or civil partner will automatically be the child’s second parent at birth.
Conversely, if the surrogate is single, they will still be the child’s legal parent at birth, with the man providing the sperm (if he wants to be the father) automatically being the second legal parent at birth. However, if certain criteria is met, it is possible for the surrogate to nominate the intended mother or non-biological father as the second legal parent.
Following the child’s birth, legal parenthood can be transferred from the surrogate by way of either:
A parental order: such an order extinguishes the parental rights of the surrogate (and her spouse, subject to the above) and confers the parental rights onto the intended parent or parents. An application should be made within six months of the child’s birth. However, there have been cases where the time limit has been extended. In the recent case of Re X, Y and Z (Children-Parental orders- time limit) [2022] EWHC 198 (Fam), although the parental order application was made outside of the six month time-limit (the children were aged 4 and 2), Mrs Justice Knowles applied her discretion to make the orders on the basis that they were in the children’s best interestsThe legislation requires that if making a sole application for a parental order, the applicant must be genetically related to the child. In addition, the applicant must (i) have the child living with them; and (ii) reside permanently in the UK, the Channel Islands or the Isle of Man. If applying with a partner, one of the parties must be genetically related to the child. In addition to having the child living with them and residing permanently in the UK, the Channel Islands or the Isle of Man, the applicants have to be married, civil partners or living as partners.
- Adoption order: if neither applicant is genetically related to the child, then adoption is the only way to become the child’s legal parent(s).
Once a parental order or adoption order has been secured, the surrogate will have no further rights or obligations in respect of the child. Care needs to be taken if the surrogacy arrangement has taken place overseas. If you are named on a foreign birth certificate as the legal parent(s) of the child, you will still have to apply for a parental or adoption order upon returning to the UK. Until a parental order or adoption order has been acquired, the law in the UK identifies the surrogate as the legal parent.
Should there be any disagreement in respect of who the child’s legal parents should be, the matter will have to be referred to the Court, who will make a decision based on the child’s best interests.
Proposed Surrogacy Law Reforms
Many people consider the law on surrogacy in the UK to be archaic and not fit for purpose. The key provisions are contained in the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008. Developments since that legislation was enacted means that reform is desirable.
After a 2018 pre-consultation research phase, the Law Commission published their provisional surrogacy law reform proposals in summer 2019 and ran a public consultation until autumn 2019. In March 2023 draft legislation for the UK was published proposing reforms. In November 2023, the Government said that it was working to review the recommendations, but that parliamentary time did not allow for the recommended changes to be taken forward at that stage. In April 2025 Baroness Merron wrote to the Law Commission thanking them for their work but explained that the Government is unable to currently prioritise surrogacy reform. Therefore, there is currently no timetable for reform.
What are the provisional recommendations?
- New routes to becoming a legal parent, which will allow intended parents to be legal parents from birth rather than having to wait to obtain a parental order;
- Changes to the way UK surrogacy is regulated with individual surrogacy arrangements being overseen by non-profit Regulated Surrogacy Organisations;
- A new Surrogacy Register;
- New rules on payments to ensure the surrogate is not left either better off nor worse off through surrogacy to minimise the risk of exploitation; and
- Legal and practical arrangements to safeguard the welfare of children born as a result of overseas surrogacy arrangements..
The Law Commission have provisionally proposed that there should be three possible routes to establishing legal parenthood:-
| What are the new routes to becoming a legal parent? | What does the new route entail? | |
| 1 | Route 1: the new ‘pathway’ for UK surrogacy, which will allow intended parents to be legal parents from birth | Where certain steps have been followed before conception and the surrogate does not object after the birth, the Law Commission proposes that the intended parents should be the legal parents from birth.
To qualify for this route, the parties must – prior to conception – (i) make a written surrogacy agreement; (ii) obtain independent legal advice; and (iii) have implications counselling. The arrangement must also be approved by a regulated surrogacy organisation or fertility clinic, which must complete a number of checks and provide information to a new national surrogacy register for the child in the future. After the birth, the intended parents will have to wait for a period of time (c. six weeks) and can thereafter register the birth assuming that the surrogate has not exercised her right to object. |
| 2 | Route 2: post-birth parental orders for UK surrogacy | The Law Commission proposes that, where the ‘pathway’ criteria is not met, the surrogate will remain the legal mother at birth. The existing law will remain so that intended parents can apply for a parental order after the child’s birth, although they will share parental responsibility with the surrogate during the application process and the surrogate’s spouse will no longer be a legal parent.
The Law Commission have also asked: (i) whether the family court should be able to waive the surrogate’s consent if she objects; (ii) whether the six-month time limit should be abolished; and (iii) whether parents should be able to apply on the basis of habitual residence, as well as domicile. |
| 3 | Route 3: parenthood for children born through international surrogacy | The Law Commission proposes that children born or conceived outside of the UK should fall outside the ‘pathway’ for parenthood. However, the UK Government should be authorised to create a list of countries, which it considers to have adequate surrogacy law and safeguards, so that children born in such countries can be automatically recognised as the legal children of the intended parents, on the basis that the proper procedures in the country of birth have been followed.
Where children are born in non-designated countries (or until a list of designated countries is created), the existing law (i.e. the need for a parental order) would remain in place. |
As the current government has indicated that reform is not considered a ‘priority’, we must therefore watch this space – but, in the meantime, Judges are interpreting the existing legislation with a wide lens in order to meet the needs of the surrogate-born child.
As is apparent, the current UK surrogacy law is not without its complications. If you are, however, considering this route to parenthood or simply wish to discuss further the option of surrogacy, our specialist family team at Payne Hicks Beach are able to provide bespoke legal advice on how best to navigate this complex area of law.
