Surrogacy presents an alternative path to parenthood that is becoming increasingly common among couples who face medical, biological, or social barriers to conceiving a child naturally. Couples considering this route often feel emotionally prepared for the journey but may not be fully aware of the intricate legal landscape they will need to navigate. In England & Wales, the legal framework around surrogacy is complex and notably different from laws in other jurisdictions. It is critical that intended parents enter into these arrangements with informed legal advice and an understanding of the current regulations, limitations, and responsibilities within this jurisdiction.
The Legal Framework in England & Wales
Surrogacy is legal in England & Wales, but the law does not always provide a seamless or straightforward way to establish legal parenthood. Current legislation is primarily governed by the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008. These pieces of legislation shape the legality and enforceability of surrogacy agreements and determine who is recognised as the legal parent(s) at birth.
Under these laws, surrogacy arrangements—whether altruistic or involving some degree of payment (within limits)—are not enforceable contracts. This means either party, including the surrogate or the intended parents, may change their minds at any time before or after the birth. Even if a written agreement exists, it carries no legal significance in court.
At the birth of the child, the surrogate is always considered the legal mother, regardless of genetic link. If she is married or in a civil partnership, her spouse or civil partner is usually regarded as the other legal parent, unless it can be demonstrated that they did not consent to the treatment. Consequently, the intended parents must go through a separate legal process to become the child’s legal parents through a parental order.
Parental Orders: The Gateway to Legal Parenthood
For couples undergoing surrogacy, the granting of a parental order is the crucial step in establishing their lawful status as the child’s parents. This order has the effect of transferring legal parenthood from the surrogate (and her partner, if applicable) to the intended parents. The application for a parental order must be made within six months of the child’s birth and must be submitted to the family court.
There are several eligibility criteria for applicants. As of 2019, the rules were broadened following a law reform to include single applicants. For couples, however, they must be married, in a civil partnership or in an enduring family relationship. At least one of the applicants must be genetically related to the child, meaning the egg or sperm must come from one of the intended parents.
The process includes submitting an application (using Form C51), notifying the court, and attending a court hearing. During this process, the court will appoint a Parental Order Reporter—usually from the Children and Family Court Advisory and Support Service (Cafcass)—to assess the welfare of the child and ensure all legal requirements are met, including the surrogate’s full and informed consent, which can only be given once the baby is six weeks old.
Key Legal Requirements for Parental Orders
Perhaps the most important aspect of a surrogacy arrangement under the law of England & Wales is obtaining the free, informed, and unconditional consent of the surrogate. Without her consent, a parental order cannot be granted. Consent can only be given after six weeks and must be properly documented and given without pressure or material inducement.
Furthermore, no money or other benefit (beyond reasonable expenses) may be paid to the surrogate unless authorised by the court. While the law doesn’t precisely define “reasonable expenses,” they commonly cover loss of earnings, maternity clothing, travel for medical appointments and other directly related costs. Payments that go beyond this, such as large lump sums or commercial surrogacy fees, are not automatically permissible and require judicial scrutiny.
The intention of lawmakers here is to maintain surrogacy as primarily an altruistic act. However, this limitation often creates practical challenges, especially when intended parents engage a surrogate through international surrogacy agencies where commercial payments are more common and sometimes viewed as standard practice.
International Surrogacy Arrangements
A growing number of couples in England & Wales look abroad for surrogacy arrangements. International surrogacy is often perceived as being more straightforward, particularly in countries where commercial arrangements are legal and contracts are enforceable. However, from a legal standpoint, international surrogacy adds significant complexity when transferring parenthood in England & Wales.
Regardless of the arrangements or legal status granted in a foreign jurisdiction, UK family courts apply English law when determining parenthood. Even if a foreign authority recognises the intended parents as the legal parents from birth, this does not automatically have effect in England & Wales. Therefore, a parental order must still be sought, and the process is often more complex due to the need for translating documents, navigating foreign birth certificates, and ensuring the surrogacy agreement and surrogate’s consent meet domestic standards.
Immigration and nationality issues also arise. If the child is born outside the UK, they may not automatically acquire British citizenship, even if one or both of the intended parents are British. In such cases, the couple must apply for a visa, British passport, or other travel documentation to bring the child to the UK while they await or initiate the parental order.
The Rights and Welfare of the Surrogate
Another core principle underpinning the law in England & Wales is the welfare of all parties involved, including the surrogate. While the focus is often on ensuring the child ultimately resides with the intended parents who sought to create and nurture that life, the law remains careful not to reduce the surrogate’s position to a mere vessel.
Safeguards are included to protect surrogates from coercion, exploitation, or undue pressure. Medical professionals and legal advisors encourage all parties to seek counselling before embarking on a surrogacy journey, and fertility clinics providing licensed treatment are under a duty to offer implications counselling.
In practice, most arrangements progress amicably, and surrogates genuinely want to help others have children. Nonetheless, the recognition that surrogates may change their minds is enshrined in law through the requirement of post-birth consent and the prohibition on contractual enforcement.
Legal Advice and Surrogacy Agreements
Although not legally binding, formal surrogacy agreements are encouraged as a means of setting expectations, clarifying intentions, and avoiding disputes. These typically outline the parties’ roles and obligations, decisions around aspects such as antenatal care, contact during pregnancy, place of birth, expenses, and arrangements immediately following the child’s birth.
It is advisable that each party—intended parents and surrogate—receive independent legal advice to ensure fair representation and informed decision-making. Although specialised lawyers are typically engaged privately (as legal aid is not generally available for parental orders or private surrogacy advice), the benefits in terms of minimising misunderstandings or disputes are significant.
Implications for LGBTQ+ Couples
The legal reforms in 2008 and subsequent years have enhanced rights for same-sex couples entering into surrogacy arrangements. Provided they meet the eligibility criteria for parental orders, same-sex couples have equal footing in the legal process.
Lesbian couples using donor sperm and gay male couples engaging a surrogate both pursue surrogacy, albeit through different assisted reproductive techniques. One partner must be genetically related to the child, and they must demonstrate either a marriage/civil partnership or enduring family relationship.
It is also essential for LGBTQ+ couples to consider the birth registration process. Initially, the surrogate will be named as the mother, and if married, her spouse—not one of the intended parents—may initially appear on the birth certificate. Once a parental order is granted, a new birth certificate is issued with the names of the intended parents.
Ongoing Law Reform and Ethical Debate
Criticism of current laws, which some claim are outdated and overly cautious, has spurred calls for reform. The Law Commission of England &Wales, in partnership with the Scottish Law Commission, undertook a comprehensive review into surrogacy law and published final recommendations in March 2023, proposing a new regulatory framework.
Among key suggestions are the introduction of a new “pathway” to parenthood that allows intended parents to be recognised as legal parents from birth, provided the arrangement has been properly pre-approved. Such a system would remove the uncertainty and emotional strain currently associated with the parental order process. It also aims to balance clarity of legal parenthood while upholding ethical standards and safeguarding all parties.
If adopted by Parliament, such reforms could radically reshape the legal experience of couples entering surrogacy in England & Wales, making it more efficient and transparent while providing protection against exploitation.
Conclusion: Importance of Preparation and Legal Support
While surrogacy offers hope and the possibility of family life for many couples unable to conceive, it is a journey filled with legal, emotional, and ethical complexities. In England &Wales, the cautious approach taken by the legal system reflects a strong desire to protect the interests of all parties, particularly the welfare of the child.
For intended parents, careful planning, early legal advice, and honest communication with the surrogate are essential. Most of the difficulties and delays encountered in surrogacy arise not from ill-intent but from legal misunderstandings or underestimating the formality of the legal process.
As the legal landscape continues to evolve, it is hoped that reforms will make surrogacy more accessible and respectful of the diverse family forms it supports, while maintaining high standards for consent, welfare and ethical integrity. Until such changes take place, entering into surrogacy in England & Wales requires a thorough appreciation of the longstanding principles of English family law, particularly the paramountcy of the child’s welfare and recognition of the surrogate’s role and rights before and after birth.