Surrogacy on the Rise in the UK

Surrogacy is becoming an increasingly common route to parenthood in England and Wales. Whereas historically only a small number of arrangements took place each year, recent data indicates a significant rise in its use. Over the past decade, the number of parents having children through surrogacy has nearly quadrupled, with more than 400 children now born through surrogacy annually in the UK.
For many individuals and couples who are unable to conceive, surrogacy provides a valuable and often life-changing opportunity to grow their family.

Although surrogacy is more widely practised in jurisdictions such as the United States, it is lawful in the UK. However, the UK operates an altruistic surrogacy system, meaning that a surrogate cannot be paid for carrying a child beyond reasonable pregnancy-related expenses. Commercial surrogacy arrangements are prohibited.

The Current Legal Framework

Despite its increasing prevalence, the law governing surrogacy in the UK is widely regarded as outdated and, at times, unclear. One of the key legal principles is that the surrogate is recognised as the child’s legal mother at birth, regardless of any genetic link.
If the surrogate is married or in a civil partnership, her spouse or civil partner will ordinarily be treated as the child’s second legal parent. This can create complications and, in some cases, delays in establishing the intended parents’ legal status.
As a result, intended parents must apply to the Court for a parental order to obtain legal parenthood. Until such an order is made, they do not have full legal rights in respect of the child.

Parental Orders

Parental orders are governed by sections 54 and 54A of the Human Fertilisation and Embryology Act 2008. To obtain a parental order, several criteria must be satisfied:

1. The applicants must be married, in a civil partnership, or living together in an enduring family relationship. Since 2019, single applicants are also eligible, provided there is a genetic link to the child.
2. The application must generally be made within six months of the child’s birth, although the Court has shown some flexibility in appropriate cases.
3. The child must have been carried by a surrogate, and at least one of the applicants must have a genetic connection to the child.
4. At the time of the application, the child must be living with the applicant(s), and at least one applicant must be domiciled in the UK, Channel Islands, or Isle of Man.
5. The applicant(s) must be over the age of 18.
6. The surrogate (and her spouse, if applicable) must freely and unconditionally consent to the making of the parental order. Such consent can only be given after the child is six weeks old.
7. No more than reasonable expenses must have been paid to the surrogate, unless authorised by the Court.
8. No parental order must already have been made in respect of the child.
The Court’s paramount consideration in determining an application is the welfare of the child.

Practical and Legal Challenges

Ultimately the current framework presents a number of practical and legal challenges. Additionally, the legal position can be particularly complex where the surrogate is married, as her spouse may automatically acquire parental status. This can lead to administrative delays and, in some cases, disputes.

Given these challenges, some intended parents explore international surrogacy arrangements. However, this introduces further legal considerations, including issues relating to immigration, citizenship, and the recognition of parental rights in the UK. In some cases, international surrogacy leads to legal ambiguities, ethical exploitation and logistical challenges that vary significantly by jurisdiction. There can be risks such as legal uncertainty as to the status of each party involved, exploitation of vulnerable women, health and safety concerns as well as post-birth disputes.

The Need for Reform

There has been ongoing discussion regarding the reform of surrogacy law in the UK. Proposed changes include a new legal framework whereby intended parents could be recognised as the child’s legal parents from birth, subject to appropriate safeguards and the surrogate’s consent.

Under such proposals, if a surrogate were to withdraw consent before birth, intended parents would still be required to apply for a parental order. However, as matters stand, these reforms have not yet been implemented.

Conclusion

Surrogacy offers an important pathway to parenthood, but it remains an area of law that requires careful navigation. The existing legal framework can be complex and, in some respects, outdated, making early legal advice essential.
Anyone considering entering into a surrogacy arrangement should ensure they are fully informed of the legal implications and procedural requirements.

How can we assist?

Our firm has experience in advising clients on surrogacy arrangements and parental orders. Elena Mitejko has a specialism in this complex area of law and she is available to provide tailored advice and support throughout the process. To speak with Elena please telephone her on 020 8949 9500 or email her directly at e.mitejko@pearsonhards.co.uk