In one of her last cases as President of the UK Supreme Court, Lady Hale in Whittington Hospital NHS Trust (Appellant) v XX (Respondent) [2020] UKSC 14, observed that “UK law on surrogacy is fragmented and in some ways obscure.”
In March 2023, the Law Commission sought to address that in a 500-page report, where they proposed some limited, but welcome reforms. In it, they recommended, inter alia, that in cases of domestic surrogacy, where certain criteria are met, the intended parents should be recognised as the child’s legal parent(s) at birth. No recommendations were made in relation to intended parents who go abroad. In response, in November 2023, the then government announced there was not enough parliamentary time to consider the proposals. There has been no indication that the new government will take up the baton.
The law
As the law stands, the woman who gives birth to a child is always the child’s legal parent (even in circumstances where her gametes were not used to create the embryo), so too is her spouse if she is married or in a civil partnership. The corollary for intended parents is that they are not recognised as the child’s legal parents unless and until they are awarded a parental order (or in some circumstances, an adoption order) by the family court. A parental order is a bespoke order (first introduced by the Human Fertilisation and Embryology Act 1990 and now by section 54 of the Human Fertilisation and Embryology Act 2008), which in many ways is like an adoption order in that it terminates the surrogate’s (and that of her spouse) legal relationship with the child and transfers it to the intended parents. The key difference between the two orders being that a parental order is reflecting what was intended, unlike an adoption order, which is usually concerned with replacing parental status. Around 450 to 500 parental orders are made each year.
Children born via surrogacy are rendered in a state of legal limbo until a parental order is made, with intended parents unable to lawfully exercise parental responsibility (for example, providing consent to medical treatment). Without the transformative effect of a parental order, legal parenthood issues, such as financial liability for a child, inheritance and succession, are not automatic and, as one judge observed speaking extra-judicially, there is “a ticking legal timebomb” for children who are not the subject of a parental order.
Surrogacy arrangements are unenforceable in the UK (Surrogacy Arrangements Act 1985, S1A) and whilst the number of domestic cases that result in a dispute between intended parents and surrogates are very rare, that risk and lack of legal certainty is often cited as a reason for intended parents going abroad. There is no mechanism for the reciprocal recognition of the parental status for intended parents who elect to go abroad, however there is a Hague Conference Parentage Working Group exploring this issue. Thus, a child born to British intended parents following a surrogacy arrangement in California will not automatically be recognised as the child’s legal parents in the UK, regardless of the orders that have been made in California. If they wish to be recognised as parents in this jurisdiction, they must apply for a parental order.
The situation elsewhere
In general, UK law in relation to surrogacy exists somewhere in the middle on the spectrum of legal approaches adopted internationally. Section 54 of the Human Fertilisation and Embryology Act 2008 sets out a statutory framework for the making of a parental order. The court is also obliged to look at the child’s lifelong welfare (i.e., beyond their minority) when making an order. However, the High Court of the Family Division, which hears all international surrogacy cases, has permitted a broad and liberal interpretation of the statute, so as to ensure that parental orders can be made where possible to ensure optimum legal security for the families concerned (for example orders have been made for adult children, when an application should be made within six months of a child being born or where an intended parent has died before an order being made). Despite this, in a recent judgment where public policy issues arose in light of the intended parents’ conduct and apparent lack of due diligence, Theis J observed that the case provided “an important cautionary reminder of the need for those embarking on surrogacy arrangements, particularly those that cross a number of different jurisdictions, to carefully consider, in advance, the arrangements, consequences and implications of that arrangement.” This case sets out essential guidance to be considered by intended parents embarking on surrogacy arrangements.
In certain states in the US (e.g., California and Illinois) it is possible for intended parents to be recognised as the child’s legal parents by way of a pre-birth order (i.e., recognition in utero, so that when the child is born, they are automatically recognised as the child’s legal parents). In such states, surrogacy laws operate within a purely contractual paradigm. However, the US presents its own complexities in a post-Roe v Wade era, where in some conservative states there has been an erosion of reproductive healthcare, which adds an additional layer of difficulty for both intended parents and individuals wishing to become surrogates.
The obvious contrast is in jurisdictions such as Italy, where a more conservative approach is taken. In October 2024, the Italian government passed a law criminalising those seeking surrogacy abroad. Surrogacy is already prohibited in Italy, but the new law now seeks to punish those who pursue surrogacy in jurisdictions where it is legal. The implications leave families with children born via surrogacy, or currently pursuing surrogacy, in a state of profound legal uncertainty. The new law is likely to disproportionately impact LGBT families, for whom adoption is also unlawful.
The new laws in Italy are unlikely to have a significant impact on the law in this jurisdiction, although it may have an impact on Italian nationals living in this jurisdiction who have a child born via surrogacy.
Conclusion
The continued evolution of what constitutes a ‘family’ within an international context and in jurisdictions where certain family units might not be recognised is not unheard of (e.g., S (Children: Parentage and Jurisdiction) [2023] EWCA Civ 897). However, in this jurisdiction, with the child’s lifelong welfare as the court’s lodestar in cases of surrogacy, the courts will endeavour to make a parental order where possible.
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