Surrogacy Law in England and Wales: What You Need to Know
Surrogacy is becoming an increasingly popular path to parenthood for those who are unable to conceive or carry a child themselves. It's a deeply personal journey, and an exciting one. But it also comes with important legal considerations that are worth understanding from the outset.
In this guide, we walk you through the key aspects of surrogacy law in England and Wales, from the basics of what is and isn't permitted, to parental orders, expenses, and what happens if your arrangement has an international element.
What is Surrogacy?
Surrogacy is an arrangement where a woman, known as the surrogate, carries and gives birth to a baby on behalf of another person or couple, known as the intended parents. It provides a path to parenthood for those who are unable to conceive naturally or carry a pregnancy themselves.
People choose surrogacy for a wide range of reasons, including:
medical conditions that make pregnancy unsafe
infertility where other treatments have been unsuccessful
genetic conditions an intended parent does not wish to pass on
for same-sex couples or single individuals who wish to have a child
For many, surrogacy represents the culmination of a long and emotional journey, and the start of a new chapter.
Is Surrogacy Legal in the UK?
Yes, surrogacy is completely legal in England and Wales. However, the law takes a deliberately cautious approach, and there are important restrictions to be aware of.
The legal framework is primarily governed by two pieces of legislation: the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008. Together, these set out what is permitted, what is prohibited, and how legal parenthood can be formally transferred after the birth.
There are some key things to know upfront.
Surrogacy arrangements are lawful but not legally enforceable
This means that the agreement relies on the trust and goodwill of everyone involved. If either party changes their mind, the courts cannot be used to enforce the original arrangement. This makes open communication and specialist legal advice all the more important before you begin.
Commercial surrogacy is prohibited
The UK only allows altruistic surrogacy, where a surrogate carries a child out of goodwill rather than for financial gain. Third parties, including solicitors, cannot lawfully act as paid commercial brokers to arrange a surrogacy. Solicitors can advise on the legal process and consequences, but the distinction between legal advice and commercial arrangement matters.
The surrogate is the legal mother at birth, regardless of any genetic connection
This is one of the most significant aspects of English surrogacy law. Even if the surrogate has no biological link to the child, she is recognised as the legal mother the moment the child is born. If she is married or in a civil partnership at the time, her spouse or civil partner will ordinarily be treated as the child's second legal parent. The intended parents do not automatically acquire legal parenthood simply because the child was conceived for them.
The Two Types of Surrogacy
It is worth briefly distinguishing between the two main forms of surrogacy, as this can affect both the legal and emotional dynamics of the arrangement.
Traditional (or straight) surrogacy involves the surrogate's own egg, making her the biological mother of the child. This raises greater legal complexity and can increase the emotional challenges involved.
Host (or gestational) surrogacy involves an embryo created via IVF, using the eggs and/or sperm of the intended parents or donors. The surrogate has no genetic link to the child. This is the more commonly chosen method, partly because it tends to involve fewer legal and emotional complications.
What is a Parental Order and Why Does It Matter?
Because the surrogate is the legal mother at birth, intended parents need to take a positive legal step to become recognised as such. This is done through a parental order.
A parental order transfers legal parenthood from the surrogate (and, where applicable, her spouse or civil partner) to the intended parent or parents. Once made, it results in the child's birth being re-registered, with a new birth certificate naming the intended parents. It is, in effect, the legal mechanism by which your family is formally recognised.
You cannot apply for a parental order during the first six weeks after the birth, the surrogate cannot give her consent before this point. Applications are made to the Family Court.
To be eligible, among other conditions, the court will need to be satisfied that:
At least one applicant has a genetic link to the child
The child is living with the applicant(s)
The surrogate freely and unconditionally consents
The applicant(s) meet the relevant age and domicile requirements
No payments beyond reasonable expenses have been made (unless retrospectively authorised by the court)
Since January 2019, single individuals as well as couples can apply for a parental order, a helpful development for those parenting alone.
If a parental order is not obtained, the consequences can be significant. The surrogate remains the legal mother. The intended parent(s) may lack full legal status, which can create complications not just within family law, but also around inheritance, parental responsibility, nationality and other vital matters.
Applying for a parental order is one of the most important steps in the surrogacy process. At RJS Family Law, our surrogacy law solicitors guide you through every stage, from preparing your application to representing you throughout the court process. Contact us today to discuss your situation.
What About Payments and Expenses?
The law prohibits payments beyond reasonable expenses. However, and this is important, there is no statutory definition of what counts as "reasonable." The courts take a fact-sensitive approach, guided by case law.
Categories that are commonly considered potentially acceptable include:
loss of earnings
travel and accommodation for treatment or antenatal appointments
maternity clothing
medical expenses
fertility treatment costs
childcare made necessary by the pregnancy
in some circumstances, life insurance or will-making costs.
The courts are more likely to raise concerns about payments that look like a flat fee with no connection to real costs, or sums that seem to be paying the surrogate simply for carrying the child rather than covering genuine pregnancy-related expenses.
That said, if payments have gone beyond what the court would normally consider reasonable, it can still approve them after the fact, and often does. The child's welfare is always the court's first priority, and judges will look carefully at the circumstances of each case.
Our practical tip: the best thing you can do is keep clear, detailed records throughout. Hold onto receipts, bank statements and invoices, and keep a running log of what was agreed, what was paid, and why. Paying the surrogate back for costs she has actually incurred, rather than making regular lump sum payments, is a much safer approach and will make things considerably smoother if the court needs to review the finances.
If you're not sure whether the payments in your arrangement are appropriate, speaking to a specialist early is the best way to avoid complications further down the line.
International Surrogacy Arrangements
If your surrogate lives abroad, or you are considering overseas surrogacy, be aware that the legal complexity increases significantly.
Even if the law in another country recognises you as the legal parent from birth, English law does not automatically follow suit. You would still need to obtain a parental order in England and Wales to be recognised as legal parents here. There may also be immigration and nationality issues to resolve in order to bring your child home.
Each destination country has its own rules, including whether surrogacy is legal there at all, how agreements are regulated, and what documentation the child will receive. You will need legal advice both in the country where the surrogacy takes place and from a family law solicitor in England and Wales.
Surrogacy and Wills
One area that is often overlooked during the surrogacy process is estate planning. If an intended parent dies before a parental order is made, the child may not automatically have legal rights to inherit from that parent's estate, because they are not yet legally recognised as the child's parent.
A well-drafted Will can address this directly, including provisions for the child's guardianship, inheritance, and any outstanding expenses owed to the surrogate. This is particularly important given that the period between birth and the finalising of a parental order is one of legal uncertainty.
Navigating Surrogacy Law with Confidence
While surrogacy offers a meaningful route to parenthood, the legal framework in England and Wales requires careful navigation. The absence of enforceable agreements and the need for a parental order mean that preparation and expert guidance are essential.
With the right legal support in place, you can focus on what matters most, building your family, while ensuring your legal position is secure every step of the way.
This blog is intended as general information only and does not constitute legal advice. If you are considering surrogacy or need guidance on your specific circumstances, contact RJS Family Law to speak with an experienced surrogacy law solicitor.
FAQs
Who is the legal parent in a surrogacy arrangement in the UK?
In England and Wales, the surrogate is always the legal mother at birth, even if she has no genetic connection to the child. If she is married or in a civil partnership, her spouse is usually the second legal parent. Intended parents must apply for a parental order to become the child’s legal parents.
Can a surrogate keep the baby in the UK?
Because surrogacy agreements are not legally enforceable in the UK, the surrogate retains legal rights at birth. This means she could decide not to proceed with the arrangement, although this is rare in practice.
Do you need a solicitor for surrogacy in the UK?
While it is not a legal requirement to instruct a solicitor, specialist legal advice is strongly recommended. A surrogacy solicitor can guide you through agreements, parental orders and any legal risks.
How long does a parental order take in the UK?
A parental order application can usually be made from six weeks after birth and may take several months to be finalised, depending on the complexity of the case and court timelines.
What rights do intended parents have before a parental order?
Before a parental order is granted, intended parents do not automatically have full legal parental rights. This can affect decisions relating to the child’s care, nationality and inheritance.
What does a surrogacy law solicitor do?
A surrogacy solicitor advises on the legal framework, prepares you for the parental order process, reviews arrangements, and ensures your legal position is protected throughout.