Authored By: Sienna Louise Warren
Aston University
Few areas of family law expose the tension between autonomy and exploitation as sharply as commercial surrogacy (CS). Under the Surrogacy Arrangements Act 1985, England and Wales maintain a clear policy against CS, reflecting concerns that financial incentives may exploit vulnerable women and commodify children. However, developments in assisted reproductive technology and changing patterns of family formation have increasingly challenged the assumptions underpinning this approach.
Despite the law’s longstanding opposition to CS, intended parents frequently enter compensated surrogacy arrangements overseas, where such practices are lawful and often regulated. English courts are then required to recognise the legal consequences of these arrangements through the parental order process, creating an inconsistency between the law’s formal prohibition and its practical operation. This framework therefore appears less successful at preventing CS than at displacing it beyond the reach of domestic regulation.
This article argues that the prohibition on CS has become both ineffective and conceptually inconsistent. Rather than eliminating the practice, it encourages reliance on international arrangements that may expose surrogates, intended parents, and children to greater legal uncertainty and fewer regulatory safeguards. While concerns regarding exploitation and commodification remain significant, they do not necessarily justify an outright prohibition. Instead, a carefully regulated system of compensated surrogacy may offer a more transparent, protective, and realistic response to the realities of contemporary family creation. The discussion begins by outlining the current legal framework before assessing whether the ethical and practical justifications for prohibition remain persuasive in modern society.
The Current Legal Framework
The regulation of surrogacy in England and Wales is primarily governed by the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008. The Surrogacy Arrangements Act 1985 was enacted in response to concerns regarding the commercialisation of reproduction and continues to reflect a clear policy against CS. While surrogacy itself is lawful, section 2 of the Act prohibits commercial involvement in the negotiation and arrangement of surrogacy agreements. As a result, the law permits surrogacy arrangements that are not organised on a commercial basis, with surrogates limited to receiving reasonable expenses rather than profit. This distinction is intended to protect women from financial exploitation and prevents the treatment of children as commodities.
The Human Fertilisation and Embryology Act 2008 established the legal framework governing parenthood in surrogacy arrangements. Under section 33, the surrogate is recognised as the child’s legal mother at birth regardless of any genetic connection to the child. Intended parents will typically apply for a parental order to transfer legal parenthood and parental responsibility. This requirement reflects the law’s cautious approach to surrogacy and its emphasis on judicial oversight before legal parenthood can be reassigned.
At the heart of the current framework is the belief that prohibiting financial gain reduces the risk of exploitation. While the objective of protecting women and children is difficult to dispute, it is less clear whether the continued prohibition on CS remains capable of achieving that aim. The growth of international surrogacy arrangements has raised increasing doubts about the effectiveness of this approach in practice. As intended parents continue to pursue compensated surrogacy arrangements overseas, the law appears less successful at preventing CS than at displacing it beyond the reach of domestic regulation.
The Gap Between Principle and Practice
The tension between the law’s formal opposition to CS and its practical operation is particularly evident in cases involving international surrogacy arrangements. In Re X and Y (Foreign Surrogacy), a British couple entered into a CS arrangement in Ukraine, where such agreements were lawful and the commissioning parents were recognised as the children’s legal parents. However, under English law the surrogate and her husband were treated as the legal parents at birth. This conflict between legal systems created significant uncertainty regarding the children’s legal status and required the intended parents to seek a parental order from the English courts. Although the arrangement involved substantial payments to the surrogate, the court granted the order, prioritising the welfare of the children. Rather than preventing CS, the law was required to legitimise the consequences of an arrangement that had already taken place. The case therefore emphasises a central weakness in the current framework, that being, once a child is born, the practical realities of the arrangement may carry greater weight than the law’s formal opposition to commercialisation.
A similar tension emerged in Re X (A Child) (Surrogacy: Time Limit). The intended parents sought a parental order more than two years after the child’s birth, despite section 54(3) of the Human Fertilisation and Embryology Act 2008 requiring applications to be made within six months. Rejecting a strict interpretation of the provision, Sir James Munby allowed the application to proceed, highlighting the significance of a parental order for a child’s legal identity, family relationships, and long term welfare. He questioned whether Parliament could truly have intended that a delay of even a single day should permanently prevent a child from obtaining the legal security provided by a parental order. The judgement reflects a recognition that rigid statutory requirements do not always align with the realities of modern surrogacy arrangements. Rather than allowing a procedural time limit to determine a child’s future legal status, the court prioritised welfare and legal certainty. The decision therefore demonstrates the increasing pressure placed upon a legislative framework that courts are repeatedly required to interpret flexibly in order to achieve fair and practical outcomes.
Supporters of the current framework may argue that these decisions do not undermine the rationale for prohibition. Concerns regarding exploitation, coercion and the commodification of children remain legitimate and continue to underpin Parliament’s opposition to CS. Nevertheless, taken together, these cases reveal a recurring pattern. While the legislative framework continues to express concern about the commercialisation of surrogacy, judicial practice increasingly reflects a pragmatic recognition that CS is already taking place. The courts have therefore been required to manage the consequences of such arrangements rather than prevent their occurrence. This raises an important question about the effectiveness of the current framework. If the prohibition on CS cannot eliminate the practice and courts routinely accommodate its outcomes to protect the welfare and identity of children, the law appears less concerned with preventing CS than with responding to it after the fact. The growing gap between legislative principle and practical reality therefore strengthens the case for reconsidering whether prohibition remains the most effective regulatory strategy.
Regulation Rather Than Prohibition
The limitations of the current framework raise a broader question: if CS cannot be prevented in practice, should the law focus on regulating it instead? The prohibition on CS was introduced to protect women from exploitation and to prevent the commodification of children. Critics argue that permitting payment risks turning reproduction into a commercial transaction and may place vulnerable women under economic pressure to become surrogates. These concerns remain significant and continue to underpin Parliament’s opposition to CS.
However, the existence of these risks does not necessarily mean that prohibition is the most effective response. As the growth of international surrogacy arrangements demonstrates, demand for compensated surrogacy has not disappeared. Instead, intended parents often seek arrangements in jurisdictions where CS is lawful and more clearly regulated. The practical effect is that CS continues to occur, but largely outside the reach of domestic oversight. This creates the paradox that a legal framework designed to protect participants may, in some circumstances, leave them with fewer safeguards than a regulated domestic system.
This shift in thinking can be seen in XX v Whittington Hospital NHS Trust. The Supreme Court held that damages could, in principle, be awarded to fund a CS arrangement in a jurisdiction where such arrangements were lawful. Lady Hale recognised that concerns regarding exploitation and commodification are not necessarily an insurmountable barrier where appropriate safeguards exist. Similarly, the Law Commission recognised the need for reform, arguing that the existing framework no longer provides sufficient certainty for those involved in surrogacy arrangements. In light of these developments, it is difficult to argue that prohibition remains the most effective means of protecting those involved. A carefully regulated model could provide greater transparency, accountability and legal certainty while imposing safeguards such as informed consent requirements and independent legal advice. Although regulation would not eliminate every ethical concern, it may offer a more realistic and protective response than a system that formally prohibits commercial arrangements while routinely accommodating their consequences.
Conclusion:
The prohibition on CS was introduced to protect women and children from exploitation. However, developments in reproductive technology, international surrogacy arrangements and judicial practice have exposed significant weaknesses in the current framework. As the courts continue to accommodate the consequences of CS, the gap between legislative principle and practical reality has become increasingly difficult to ignore. While ethical concerns remain important, a carefully regulated system may offer greater protection, transparency, and legal certainty than outright prohibition. Future reform should therefore focus on developing a regulatory framework that better protects all those involved.
Bibliography
Cases:
Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam), [2009] 1 FLR 733.
Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam)
XX v Whittington Hospital NHS Trust [2020] UKSC 14, [2020] AC 1014
Legislation:
Human Fertilisation and Embryology Act 2008
Surrogacy Arrangements Act 1985
Secondary Sources:
Bridge C, ‘Re X and Y: A Trek Through a Thorn Forest’ [2009] Family Law.
Law Commission:
Law Commission and Scottish Law Commission, Building Families Through Surrogacy: A New Law (Consultation Paper No 244, Scottish Law Commission Discussion Paper No 167, 2019)a
