Over the past decade, the UK has been experiencing a major increase in surrogacy demand, with figures showing that twice as many children were born to surrogates last year compared with 10 years ago. Many agencies report that they are struggling to keep up with demand, and as fertility challenges rise and modern family-building evolves – same-sex couples, single parents, IVF journeys – the pressure for more support only grows.
While surrogacy is often entered into with trust, goodwill and shared intentions, it also sits within a complex legal framework that can be difficult for families to navigate without specialist legal advice. Educating families about the importance of this advice early on is essential to protecting not just individual rights, but the wider family relationships involved.
The legal framework, currently anchored in the Surrogacy Arrangements Act (SAA) 1985 and the Human Fertilisation and Embryology Act 2008 (HFEA), also continues to face scrutiny. While there have been calls for parliamentary reform, obtaining specialist legal advice at an early stage remains one of the most effective ways for intended parents and surrogates to navigate the current legal framework and avoid unexpected complications.
Parenthood in limbo
Under s.33 HFEA 2008, the surrogate is automatically the child’s legal mother at birth, regardless of genetics. Furthermore, under ss.35 and 42 HFEA 2008, her spouse or civil partner is presumed the second legal parent unless lack of consent is proven. Intended parents (IPs) must secure a parental order post-birth to reassign legal parentage, a process strictly governed by statutory criteria under s.54 for couples or s.54A for individuals.
This is a shortcoming of the current legislation, as this statutory delay creates a period of legal exposure during the first few months of the child’s life. While parental orders are routinely granted where criteria are satisfied, practitioners must navigate court timetable delays and CAFCASS parental order investigations, alongside strict evidentiary checks regarding habitual residence and genetic links.
During this time, families are vulnerable, as illustrated by the recent McKenna West case in the US, where the surrogate mother and IPs disagreed on how to progress the pregnancy after a birth defect was identified at 20 weeks. This led to the surrogate mother leaving the state to give birth and now fighting for custody of the child in the Supreme Court. Whilst arising in a very different legal jurisdiction, the case serves as a reminder of the disputes that can emerge where expectations are not aligned from the outset.
Furthermore, under s.1A SAA 1985, surrogacy contracts are legally unenforceable. Designed to prevent commercialisation, this rule requires parties to rely entirely on trust, leaving significant vulnerabilities if relationships deteriorate prior to the parental order application.
This highlights the importance of advising clients on pre-conception planning and risk management. This includes drafting non-binding surrogacy agreements to evidence intent and structure permitted expenses under s.54(8) HFEA 2008.
Family lawyers should also consider working closely with private client colleagues to ensure appropriate wills and succession planning are addressed during the period before a parental order is granted – such as temporary guardianship appointments, discretionary trusts and specific testamentary provisions – mitigating intestacy risks during the pre-parental order gap.
The case for reform
In 2023, the Law Commission’s joint report and draft bill proposed replacing the current retroactive court regime with a regulated ‘New Pathway’. Under this framework, legal parentage would be given to IPs at birth, conditional upon rigorous pre-conception screening, independent legal counsel, and oversight by Regulated Surrogacy Organisations (RSOs).
Crucially for practitioners, the draft framework preserves the surrogate’s absolute statutory right to opt out within six weeks post-birth. An opt-out immediately reverts the process to the traditional court-administered parental order route, requiring solicitors to maintain contingency plans for litigation.
The proposed forms also clarify the boundary between permitted reasonable expenses (e.g., lost earnings, medical costs, maternity clothing) and prohibited commercial payments (e.g., direct pregnancy fees, general rent/mortgage payments), offering clearer guidance for compliance.
Due to prolonged legislative resistance, these recommendations remain unimplemented. However, this delay does not reduce demand; instead, it pushes IPs toward complex and risky international surrogacy jurisdictions. For practitioners, cross-border instructions introduce substantial challenges involving British nationality law, entry clearance and immigration compliance. However, this is something we are bound to see more of without reform, as demand becomes more difficult to handle in the UK.
Final thoughts
Until reform is implemented, solicitors must navigate a statutory regime that relies heavily on judicial flexibility to bridge modern family planning realities. Detailed pre-conception planning, precise statutory compliance and early legal advice remain paramount to safeguarding children's welfare and managing legal risk.
While reform remains the ultimate goal, practitioners must advise strictly on the law as it currently stands rather than anticipated future changes. Regardless of any future legislative reform, the welfare of the child remains the court's paramount consideration when determining applications for parental orders. While most surrogacy arrangements proceed without dispute, careful planning and transparency from the outset help ensure that the child's interests remain the central focus throughout the process.
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