The Current Law on Surrogacy in England and Wales: Evaluating the Protection of the Child, the Surrogate Mother, and the Intended Parents

Introduction

Surrogacy has become an increasingly popular method for individuals to have children, driven by advances in assisted reproductive technology and the growing diversity of family structures.¹ However, the law regarding surrogacy has been criticised in England and Wales for being outdated.² The current legislation on surrogacy in England and Wales is governed by the Surrogacy Arrangements Act 1985³ (SAA 1985) and specific conditions in the Human Fertilisation and Embryology Act 2008⁴ (HFEA 2008). The aim of this legislation is to safeguard the welfare of the surrogate mother, the intended parents, and the child.⁵

This article evaluates the extent to which the child, the surrogate mother, and the intended parents are protected under the current law. It proceeds by examining the development of the law regarding surrogacy, evaluating the strengths and weaknesses of the current legal framework, considering proposals for reform, and offering a recommendation as to whether further legislative reform is required.

The Development of the Law Regarding Surrogacy

Historical Position

The Surrogacy Arrangements Act 1985

The Surrogacy Arrangements Act 1985⁶ (SAA 1985) was enacted in response to some of the Warnock Committee’s 1984 recommendations. It was seen as a quick solution to commercialised surrogacy arrangements and the risk of exploitative, profit-making agencies.⁷

The Human Fertilisation and Embryology Act 2008

The Human Fertilisation and Embryology Act 2008⁸ (HFEA 2008) made several further changes to the law, including the following⁹:

• Non-profit-making surrogacy agencies were formally made lawful.¹⁰
• Unmarried and same-sex couples were included in the categories of parents who could apply for a parental order.¹¹

Surrogacy Definition

Surrogacy is when a female, usually known as the surrogate, is pregnant with a child who may or may not be genetically related to her.¹² She carries the child for another family, to whom she gives the child once it is born.¹³

Types of Surrogacy

There are two types of surrogacy: traditional (or partial) surrogacy and gestational (or full) surrogacy.¹⁴

Traditional or Partial Surrogacy

Traditional surrogacy is when the surrogate is genetically related to the child because her own eggs have been used. Artificial insemination is therefore used to conceive the child.¹⁵

Gestational or Full Surrogacy

Gestational surrogacy involves the creation of an embryo in vitro using the intended parents’ gametes.¹⁶ The embryo is then transferred to the surrogate’s uterus to conceive the child.¹⁷

The Current Law on Surrogacy

Having traced how the law developed, this section turns to how surrogacy operates in practice today.

The Current Law

The current law on surrogacy in England and Wales is governed by the SAA 1985¹⁸ and specific conditions in the HFEA 2008.¹⁹

Surrogacy Arrangements

Surrogacy arrangements are unenforceable in law, even where expenses have been paid and a document has been signed.²⁰ This unenforceability creates an absence of legal remedies: if the surrogate does not wish to give the child to the intended parents once born, the intended parents will have few legal rights; conversely, if the intended parents do not wish to keep the baby, legal responsibility falls to the surrogate.²¹ This legal ambiguity raises concerns about accountability and parental responsibility when surrogacy arrangements break down.

The Legal Status of the Surrogate

The legal status of the mother of a child born through surrogacy is set out in section 33 of the HFEA 2008.²² The woman who is carrying, or has carried, the child is deemed to be the child’s legal mother.

Section 35 of the HFEA 2008²³ treats the intended father as the child’s legal father where the surrogate is unmarried. Where she is married or in a civil partnership, the law instead treats her husband or civil partner as the child’s father,²⁴ unless it can be shown that he did not consent.²⁵

The Legal Status of the Intended Parents

An intended parent who donates gametes, and who therefore has a genetic link to the child, will have no automatic legal rights as a result.²⁶

The intended mother has no automatic legal status, and the intended father has only a limited chance of being recognised as the legal father, unless:

• his sperm has been used; and
• the pregnancy occurs without licensed treatment being involved.²⁷

How Parenthood Can Be Transferred to the Intended Parents

There are two ways in which legal parental status can be transferred from the surrogate to the intended parents: by obtaining a parental order, or by adoption.

Parental Order

A parental order must be sought by the intended parents after the child’s birth in order for them to become the child’s legal parents.²⁸ Specific requirements must be met. These are set out in section 54 of the HFEA 2008²⁹ and include the following criteria for when a parental order may be granted:

• The order must be made by a court within six months of the child’s birth (s.54(3)).³⁰
• The child must already be living with the intended parents (s.54(4)(a)).³¹
• The intended parents must be domiciled in the UK (s.54(4)(b)).³²
• The child must be genetically related to at least one of the intended parents (s.54(1)).³³
• An order can be made only if the surrogate mother has consented, and if her husband or civil partner gave consent to the insemination (s.54(6)), unless he or she is unable to give consent or cannot be found (s.54(7)).³⁴
• No money may have been received or given, other than for reasonable expenses, unless the court authorises otherwise (s.54(8)).³⁵

In relation to the six-month requirement, the court in Re X (A Child) (Surrogacy: Time Limit) [2014]³⁶ interpreted the statute such that, in practice, this time limit no longer applies strictly: the court has since made numerous parental orders in respect of children older than six months.³⁷

The court has also interpreted the requirement that a child must have their home with both intended parents to include situations where a child moves between the separate homes of parents who have since separated.³⁸

Pros of the Current System

Despite widespread criticism, the current framework does offer some protections. These are considered in turn below.

Commercial Surrogacy

Because commercial surrogacy is illegal, exploitation is prevented, which protects the interests of both the child and the surrogate.³⁹ This restriction can therefore be regarded as beneficial from a public policy perspective.

The Surrogate

Under the current law, the surrogate mother has, to some extent, greater legal protection than the intended parents.⁴⁰ As she holds parental legal status from the outset, she is not required to surrender the child to the intended parents if she has second thoughts.

The Child

In surrogacy arrangements, once the child has been born, the courts’ primary consideration is the child’s welfare.⁴¹ The interests of the child are therefore protected to a significant extent, since the child’s welfare remains the paramount consideration. Although surrogacy contracts are not legally enforceable, this does not affect the family law requirement that the child’s welfare be treated as paramount.⁴²

Intended Parents

There is some protection for the intended parents: a professional evaluation is carried out of the surrogate’s state of mind and her suitability to act as a surrogate. However, this is the only protection currently available to intended parents.

Cons of the Current System

Set against these protections are several significant weaknesses, discussed below.

The Surrogate Mother Having Second Thoughts

After the birth of the child, the surrogate mother cannot be forced to surrender the child to the intended parents if she has second thoughts. This can be highly emotional and distressing for the intended parents, who may have planned and made surrogacy arrangements over a lengthy period.

Parental Order and Adoption

Obtaining a parental order poses both practical and emotional difficulties, since the application can only be made after the child’s birth and requires the surrogate’s consent.⁴³ The adoption procedure can likewise be lengthy and time-consuming.⁴⁴ This can be problematic where a child requires urgent medical attention shortly after birth, since it is the surrogate who must authorise treatment until the intended parents have obtained a child arrangements order.

Uncertainty

The surrogacy process can be uncertain for the surrogate, who could end up with ongoing legal responsibility if the intended parents fail to obtain a parental order within six months of the child’s birth. Similarly, intended parents may have to wait months, and navigate considerable legal difficulty, before being recognised as the child’s legal parents.⁴⁵ This fails to adequately protect the interests of either the intended parents or the surrogate mother.

In the modern day, alternative family structures have grown significantly, yet the current law remains based on outdated sociological assumptions.⁴⁶ This is problematic, as the outdated law fails to address alternative families, leaving the interests of the child, the surrogate mother, and the intended parents in such cases unprotected.

Reasonable Expenses

Because surrogacy arrangements are legally unenforceable, reasonable expenses paid by the intended parents to the surrogate cannot be recovered if the arrangement breaks down.⁴⁷ This is problematic, as it could leave intended parents significantly out of pocket, which is inherently unfair and fails to protect their interests. Furthermore, while the current law restricts payments to surrogates to “reasonable expenses,” it simultaneously permits courts to authorise compensation beyond this — a contradiction that undermines confidence in the law.⁴⁸

Case Law

Case law has stretched the boundaries of the statute to meet practical needs, creating a mismatch between judicial practice and the statutory text. This inconsistency adds complexity and may make surrogates and intended parents apprehensive about relying on the law. Consequently, the law of surrogacy in England and Wales should be reformed and brought up to date.⁴⁹

Proposals for Reform

The Law Commission

The Law Commission undertook a comprehensive review after the law on surrogacy was considered inadequate. It found that “while society and attitudes have evolved, the law has not done so sufficiently.”⁵⁰

Some of the Law Commission’s proposals include:

• Enabling intended parents to become the legal parents immediately upon the child’s birth, subject to the surrogate retaining the ability to object for a short period afterwards — removing the need to obtain a parental order under the current system.
• Removing the requirement for a genetic link between the child and the intended parents where this is medically necessary.
• Enabling children to be brought into the country more quickly, with recognition of legal parental status across borders.
• Allowing those born through surrogacy arrangements to access information about their origins, through the creation of a register.⁵¹

As at the time of writing, these proposals remain unimplemented: the Government confirmed in April 2025 that it is unable to prioritise surrogacy law reform, and as of 2026 no Bill has yet been brought before Parliament, meaning the 1985 and 2008 framework discussed above continues to apply in full.⁵²

My Proposal and Rationale for Further Reform

Restrictions in the Law

There is a clear restriction in the law for single intended parents and couples, since they cannot obtain a parental order without a genetic connection to the child. The law should be amended to enable them to access surrogacy without requiring a genetic connection. This would protect the interests of intended parents in this position and give them the option of having a child.

Moreover, the law needs to be modernised, as families have diversified and surrogacy has become far more prevalent than when the law was introduced in 1985. There have been major changes in the variety and forms of family structures since then;⁵³ the law must therefore be updated to reflect present-day realities and to create a more coherent system.

Many women acting as surrogates have expressed that they do not wish to become the legal parent of the child they are carrying.⁵⁴ The current law therefore fails to protect the interests of surrogates, as it does not reflect their wishes or afford them autonomy in this matter.

Gaps in the Law

The current law is piecemeal and fails to address the gaps in surrogacy law. A clearer and more certain framework is needed to protect the interests of the child, the surrogate mother, and the intended parents. The courts’ case-by-case interpretation of the law is often incompatible with the existing legislation, which can create confusion, in turn undermining clarity and certainty.

However, this is not to say that a piecemeal approach is wholly inadequate: judicial discretion has allowed the legislation to be adapted to modern circumstances, which has been beneficial. If the legislation is reformed, a degree of judicial flexibility could still be retained to address complex issues and to establish precedent. Nonetheless, the statute is significantly outdated, and reform is required to reflect present-day society rather than relying on a framework no longer fit for purpose.

The treatment of reasonable expenses would also need to be addressed to bring clarity and certainty to this area of the law.⁵⁵ As this currently depends on judicial discretion, it can produce inconsistent outcomes across similar cases.

Conclusion

Since the enactment of the SAA 1985, society has undergone significant change, and legal reform is now essential. Amending the law is required to address the issues identified in this article. Such reform would enhance the protection of the interests of the child, the surrogate, and the intended parents. Although the current framework offers some protection to the child and the surrogate, it offers little to the intended parents; comprehensive reform would ensure that all parties receive increased and equitable protection.

Bibliography

Legislation

• Human Fertilisation and Embryology Act 2008
• Surrogacy Arrangements Act 1985

Cases

• Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam)

Books

• Carr C, Unlocking Medical Law and Ethics (2nd edn, Taylor & Francis 2015)
• Jackson E, Medical Law: Text, Cases and Materials (6th edn, OUP 2022)
• Nordqvist P and Smart C, Relative Strangers: Family Life, Genes and Donor Conception (Palgrave Macmillan 2014)

Journal Articles

• Ceadel D, “A Fertile Window: Surrogacy Law Is a Fertile Breeding Ground for Uncertainty” (2015) 165 New Law Journal 10
• Fenton-Glynn C, “The Difficulty of Enforcing Surrogacy Regulations” (2015) 74 Cambridge Law Journal
• Igiehon O, “Should the UK Law on Surrogacy Be Reformed?” [2021] New Law Journal
• Jackson E, “UK Law and International Commercial Surrogacy: ‘The Very Antithesis of Sensible'” (2016) 4 Journal of Medical Law and Ethics 197
• Purshouse C and Bracegirdle K, “The Problem of Unenforceable Surrogacy Contracts: Can Unjust Enrichment Provide a Solution?” (2018) 26 Medical Law Review 557
• Williams S and Williams E, “Surrogacy: It’s Time for the Law to Catch Up” [2019] International Family Law Journal

Reports and Government Documents

• Law Commission of England and Wales and Scottish Law Commission, Building Families through Surrogacy: A New Law (Law Com No 411; Scot Law Com No 262, 2023)
• GOV.UK, “Surrogacy: Legal Rights of Parents and Surrogates” (2021)

Commentary and Online Sources

• Christianah B, “The Sorry State of UK Surrogacy Law,” LawCareers.Net
• Collis P, “Surrogacy Law: Important New Developments,” Family Law in Partnership (2019)
• Fouzder M, “Surrogacy Law Needs Parental Guidance,” The Law Society Gazette (2016)
• Giant Peach, “History of UK Surrogacy Law,” NGA Law (2021)
• Giant Peach, “How UK Surrogacy Law Needs to Change,” NGA Law (2021)

Footnote(S):

1. Emily Jackson, Medical Law: Text, Cases and Materials (6th edn, OUP 2022) ch 21.
2. Law Commission of England and Wales and Scottish Law Commission, Building Families through Surrogacy: A New Law (Law Com No 411; Scot Law Com No 262, 2023) paras 1.1–1.14.
3. Surrogacy Arrangements Act 1985.
4. Human Fertilisation and Embryology Act 2008.
5. Surrogacy Arrangements Act 1985; Human Fertilisation and Embryology Act 2008.
6. Surrogacy Arrangements Act 1985.
7. Ibid.
8. Human Fertilisation and Embryology Act 2008.
9. Ibid.
10. Giant Peach, “History of UK Surrogacy Law – NGA Law” (Ngalaw.co.uk, 2021).
11. Ibid.
12. Craig Purshouse and Kate Bracegirdle, “The Problem of Unenforceable Surrogacy Contracts: Can Unjust Enrichment Provide a Solution?” (2018) 26 Medical Law Review.
13. Ibid.
14. Claudia Carr, Unlocking Medical Law and Ethics (2nd edn, Taylor & Francis 2015).
15. Ibid.
16. Ibid.
17. Ibid.
18. Surrogacy Arrangements Act 1985.
19. Human Fertilisation and Embryology Act 2008.
20. “Surrogacy: Legal Rights of Parents and Surrogates” (GOV.UK, 2021).
21. Claudia Carr, Unlocking Medical Law and Ethics (2nd edn, Taylor & Francis 2015).
22. Human Fertilisation and Embryology Act 2008, s 33.
23. Human Fertilisation and Embryology Act 2008, s 35.
24. Dickon Ceadel, “A Fertile Window: Surrogacy Law Is a Fertile Breeding Ground for Uncertainty” (2015) 165 New Law Journal 10.
25. Human Fertilisation and Embryology Act 2008, s 35.
26. Sarah Williams and Emma Williams, “Surrogacy: It’s Time for the Law to Catch Up” [2019] International Family Law Journal.
27. “Surrogacy: Legal Rights of Parents and Surrogates” (GOV.UK, 2021).
28. Pamela Collis, “Surrogacy Law: Important New Developments – Family Law in Partnership” (2019).
29. Human Fertilisation and Embryology Act 2008, s 54.
30. Human Fertilisation and Embryology Act 2008, s 54(3).
31. Human Fertilisation and Embryology Act 2008, s 54(4)(a).
32. Human Fertilisation and Embryology Act 2008, s 54(4)(b).
33. Human Fertilisation and Embryology Act 2008, s 54(1).
34. Human Fertilisation and Embryology Act 2008, s 54(6)–(7).
35. Human Fertilisation and Embryology Act 2008, s 54(8).
36. Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam).
37. Law Commission, Building Families Through Surrogacy: A New Law: Summary of Consultation Paper.
38. Ibid.
39. Ibid.
40. Sarah Williams and Emma Williams, “Surrogacy: It’s Time for the Law to Catch Up” [2019] International Family Law Journal.
41. Emily Jackson, “UK Law and International Commercial Surrogacy: ‘The Very Antithesis of Sensible'” (2016) 4 Journal of Medical Law and Ethics 197.
42. Craig Purshouse and Kate Bracegirdle, “The Problem of Unenforceable Surrogacy Contracts: Can Unjust Enrichment Provide a Solution?” (2018) 26 Medical Law Review 557.
43. Stephen R Latham, “The United Kingdom Revisits Its Surrogacy Law” (2020) 50 Hastings Center Report.
44. Ibid.
45. Owen Igiehon, “Should the UK Law on Surrogacy Be Reformed?” [2021] New Law Journal.
46. Dickon Ceadel, “A Fertile Window: Surrogacy Law Is a Fertile Breeding Ground for Uncertainty” (2015) 165 New Law Journal 10.
47. Craig Purshouse and Kate Bracegirdle, “The Problem of Unenforceable Surrogacy Contracts: Can Unjust Enrichment Provide a Solution?” (2018) 26 Medical Law Review 557.
48. Giant Peach, “How UK Surrogacy Law Needs to Change – NGA Law” (2021).
49. Ibid.
50. Law Commission, Building Families Through Surrogacy: A New Law: Summary of Consultation Paper.
51. Ibid.
52. Baroness Merron, letter to the Law Commission (April 2025), cited in Law Commission of England and Wales, Surrogacy project page (lawcom.gov.uk); House of Commons Library briefing paper (23 September 2025) updating the Law Commissions’ 2023 report.
53. Petra Nordqvist and Carol Smart, Relative Strangers: Family Life, Genes and Donor Conception (Palgrave Macmillan 2014).
54. Law Commission, Building Families Through Surrogacy: A New Law: Summary of Consultation Paper.
55. Christianah B, “The Sorry State of UK Surrogacy Law” (LawCareers.Net).