UK Surrogacy and proposed reform

Current law in England and Wales

Surrogacy is legal in the UK, although it is not possible to enforce a UK surrogacy agreement. There are a number of conditions which must be satisfied if the intending parent(s) wish to acquire joint legal parentage and parental responsibility. A surrogate can be reimbursed for their reasonable expenses and this is routinely done by the courts. So the legal position is that surrogacy is therefore permitted if it is purportedly altruistic. From a child’s rights perspective, the case law also demonstrates the increasing importance given to the child’s origins and of relationships (between intending parent(s) and the surrogate and the child and the surrogate). 

A child born via surrogacy in England and Wales will remain the child of the surrogate (and her spouse if she is married) until a parental order is made. The intended parent(s) will not have parental responsibility for the child (unless they acquire it by other legal means) until a parental order is made. The law applies even if the surrogacy-born child is born outside of the UK. The law on parentage does not join up internationally. 

In order to be able to apply for a parental order the criteria set out at section 54 and section 54A Human Fertilisation and Embryology Act 2008 (as amended) must be complied with:

1. The intended parents are married, in a civil partnership, or are living together as partners in an enduring family relationship. In 2019, the law was changed to enable a single parent, who has a genetic link to a child born via surrogacy, to be able to apply for a parental order – prior to which only a couple could apply;
2. The application for a parental order has been made within the first six months of the child’s birth. There are however several instances where the court has not treated this as a hard and fast rule when there have been good reasons why the application was not made in time;
3. The child was carried by a woman who is not one of the applicants and there is a genetic link between the child and at least one of the applicants;
4. When the application is made, the child’s home is with the applicants and either or both of the applicants are domiciled in the UK, Channel Islands or Isle of Man;
5. The applicant(s) is (are) over the age of 18;
6. The surrogate and her spouse (if any) has freely, and with a full understanding of what is involved, agreed unconditionally to the making of the parental order and their consent to the making of the parental order was made no less than six weeks after the child’s birth;
7. Only reasonably incurred expenses have been paid to the surrogate by the applicants; and
8. A parental order has not already been made in respect of the child.

If the court is not able to make a parental order for whatever reason, it may look to other alternatives, such as:

• the making of an adoption order; or
• a child arrangements order providing for the child to live with the intended parent(s), which also confers parental responsibility.

Proposed reform

In 2023, the Law Commission of England and Wales and the Scottish Law Commission published a joint report outlining proposed reform to govern surrogacy in the UK. The proposed regulatory regime includes a new pathway to legal parenthood - in the proposed pathway, the required screening and safeguards (that currently take place when a parental order application is made) would take place before conception, rather than after birth, and this would be overseen by non-profit making surrogacy organisations, regulated by the Human Fertilisation and Embryology Authority (to be known as Regulated Surrogacy Organisations). This would mean the court only needing to intervene in the event of a dispute. The proposals include:

• having a legally enforceable surrogacy agreement between the surrogate and the intended parents;
• a pre-conception assessment of the welfare of the wanted child;
• independent legal advice about entering into the surrogacy agreement for the intended parents and the surrogate;
• the agreement of a Regulated Surrogacy Organisation to admit the surrogacy agreement onto the new pathway.

Intended parent(s) could under the proposed pathway become a legal parent(s) at birth without having to apply for a parental order, if the pre-conception conditions are met, but the surrogate would have up to 6 weeks after birth to withdraw consent. If the surrogate withdrew consent after agreement but prior to birth, the intended parent(s) would have to apply for a parental order. If the surrogate withdraw consent after birth but prior to 6 weeks after, the intended parent(s) would have legal responsibility and the surrogate would have to apply for a parental order. 

The report also proposes that there be clarity over which payments intended parent(s) are permitted to make to the surrogate. The current concept of reasonably incurred expenses is broad and can provide a source of confusion and concern for the intended parent(s). 

The Law Commission recommend that the prohibition on commercial surrogacy continue. With only altruistic surrogacy arrangements to be permitted.

This new law would modernise the approach to surrogacy to bring the UK into the same league as parts of the United States and would allow much needed regulation. The proposal to have regulated agreements, with enforceable safeguards for all parties, would be a significant step forward. 

On 23 September 2025, the House of Commons Library included in a briefing paper an update to the Law Commissions’ joint 2023 report Building families through surrogacy: a new law.  The current UK Government has however stated that they are presently unable to prioritise surrogacy reform but it will consider the matter in the future. We will wait to see what happens. 

If you are considering on embarking on a surrogacy journey, domestically or internationally, it is important to seek family law (and, if an international arrangement, immigration law) guidance and advice from the outset to ensure that all requirements are complied with and the end result is one that you intend.