Introduction
Surrogacy presents a way for individuals and couples who cannot otherwise conceive or carry a child to form a family. In the United Kingdom, the legal framework governing these arrangements has struggled to keep pace with social and medical developments. The current law, primarily based on the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008, establishes that the woman who gives birth to a child is, at law, the child’s mother. Intended parents (IPs) must apply to the court for a parental order after the birth to obtain legal parenthood. This process creates a period of legal uncertainty for the child, the IPs, and the surrogate. This has led to widespread calls for reform, culminating in major proposals from the Law Commissions of England and Wales and Scotland. This essay will argue that surrogacy law should be reformed to allow for the recognition of intended parents as legal parents from the moment of birth. It will contend that the current system, with its inherent delays, fails to prioritise the welfare of the child and does not reflect the reality of the surrogacy arrangement. While acknowledging the importance of protecting the surrogate’s autonomy, this essay concludes that a new, regulated pathway, as proposed by the Law Commissions, offers a more appropriate and secure model for all parties involved.
The Current Legal Framework for Surrogacy
The legal regulation of surrogacy in the UK is built on a foundation that predates modern understandings of such arrangements. The Surrogacy Arrangements Act 1985 (SAA 1985) was enacted in response to public anxiety surrounding commercial surrogacy. Its primary effect is to render surrogacy contracts legally unenforceable (SAA 1985, s 1A). This means that neither the IPs nor the surrogate can sue to enforce the terms of their agreement. The Act also prohibits commercial surrogacy, making it a criminal offence for third parties to arrange surrogacy for profit.
Legal parenthood is determined by the Human Fertilisation and Embryology Act 2008 (HFEA 2008). Under section 33, the woman who carries and gives birth to a child is unequivocally deemed the child’s legal mother, regardless of any genetic link to the child. If the surrogate is married, her husband is typically considered the legal father unless it can be shown he did not consent to the treatment (HFEA 2008, s 35). This legal presumption means that at birth, the IPs have no legal parental status or responsibility for the child they intended to create and raise.
To alter this position, IPs must apply for a parental order under section 54 of the HFEA 2008. This order reassigns parenthood from the surrogate (and her spouse, if applicable) to the IPs. However, obtaining this order is not automatic and is subject to several strict conditions. The applicants must be over 18, and the application must be made within six months of the child's birth (s 54(3)). This time limit has been interpreted flexibly by the courts, with extensions granted where the child's welfare requires it, as seen in Re X (A Child) (Parental Order: Time Limit) [2014] EWHC 3135 (Fam). Furthermore, the child must be living with the IPs at the time of the application and the order (s 54(4)(a)), and at least one of the IPs must be genetically related to the child (s 54(1)(b)).
Crucially, the surrogate must give her free, unconditional, and fully informed consent to the making of the order (s 54(6)). This consent is only valid if given more than six weeks after the child's birth. This six-week "cooling-off" period is designed to ensure the surrogate's decision is made without the pressures of pregnancy and childbirth. Another condition relates to payment. Section 54(8) states that no money or other benefit, beyond "expenses reasonably incurred," should have been paid in connection with the surrogacy unless authorised by the court. In practice, the courts have consistently authorised payments exceeding reasonable expenses where the child's welfare is best served by granting the parental order. In cases like Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) and Re S (Parental Order) [2009] EWHC 2977 (Fam), the judiciary has established that refusing an order and leaving a child legally parentless, or with a legal parent with whom they have no connection, would be contrary to the child’s best interests. The child's welfare is the court's paramount consideration in these applications (HFEA 2008, s 1).
The Problems with the Current Parental Order System
The existing legal model, while functional, is widely seen as outdated and problematic. The central issue is the delay and uncertainty it creates. From the moment of birth until a parental order is granted—a process which often takes several months—the law operates a "legal fiction" (Law Commission, 2023). The surrogate is the legal mother, and the IPs, who are caring for the child, have no legal status.
This legal limbo has significant practical consequences. For example, IPs cannot automatically make medical decisions for the child or register the child's birth. If there were a medical emergency, doctors would legally need to seek consent from the surrogate. This disconnect between legal reality and the lived experience of the family is a source of considerable stress and anxiety for IPs, who are unable to fully assume their parental role in the eyes of the law. As Baroness Hale noted in Re Z (A Child) (No 2) [2016] UKSC 51, legal parenthood is vital for a child's sense of identity and security. The current delay deprives the child of this security during the first few months of life.
The waiting period also places the surrogate in an difficult position. Although she may have no intention of parenting the child, she remains legally responsible until the parental order is granted. This includes financial responsibility, even though the child is not in her care. The system effectively forces her to retain a legal status she does not want, which does not align with the intentions of the arrangement.
Furthermore, the legal framework is misaligned with the emotional and social realities of surrogacy. Most surrogacy arrangements in the UK are based on strong foundations of trust and altruism. The law's insistence on treating the surrogate as the default mother until she formally relinquishes her rights fails to recognise the pre-conception intention of all parties. It frames the situation as one where the surrogate must 'give up' a child, rather than one where she has helped to create a family for others from the outset. This can be emotionally taxing and does not reflect the positive relationships that often characterise these arrangements. The necessity for the court to retrospectively authorise payments also creates uncertainty, although judicial practice has established a clear pattern of approval where welfare demands it. The entire process is cumbersome and places a burden on the court system to resolve a status that all parties agreed upon before the child was even conceived.
The Case for Reform: Recognition from Birth
In response to these deficiencies, the Law Commission of England and Wales and the Scottish Law Commission published a comprehensive joint report in 2023, "Building families through surrogacy: a new law." The report’s centrepiece is a proposal for a "new pathway" to legal parenthood that would allow IPs to be recognised as the legal parents from the moment of the child's birth.
This new pathway would be a regulated route, designed to provide greater security and clarity. To be eligible, the surrogacy arrangement would need to be conceived and managed within the UK through a non-profit Regulated Surrogacy Organisation (RSO). Before any embryo transfer, the RSO would be responsible for screening and vetting all parties. The IPs and the surrogate (and her spouse, if any) would need to undergo medical and criminal records checks, receive independent legal advice, and have counselling to ensure they fully understand the implications of the arrangement. The RSO would then oversee the creation of a "Surrogacy Agreement," which would be assessed to ensure it is in the best interests of the future child. Once the agreement is confirmed, the IPs would be the legal parents from the point of birth.
The benefits of such a system are clear. First and foremost, it would resolve the problem of legal uncertainty. The child would have secure legal parents from birth, aligning the law with the child's lived reality. This would enable the IPs to make decisions for their child, register the birth, and be recognised as the family unit they are without delay. This serves the principle of the child's welfare being paramount by providing immediate stability. Second, it would formally recognise and respect the pre-conception intentions of both the IPs and the surrogate. The law would finally catch up with the social understanding of surrogacy as a collaborative act of family-building. Third, introducing RSOs would bring much-needed regulation, support, and oversight to the process, safeguarding against exploitation and ensuring all parties are properly informed and prepared. The current system offers very little formal support, leaving parties to navigate a complex journey largely on their own.
Counterarguments and Challenges to Reform
Despite its clear advantages, the proposal to recognise IPs as parents from birth is not without opposition, and it raises significant ethical and practical challenges. The most substantial counterargument concerns the autonomy of the surrogate. The current law, with its requirement for consent to be given at least six weeks post-partum, is rooted in the belief that a woman cannot give truly informed consent to relinquish her parental rights before she has experienced pregnancy and childbirth. It protects a woman’s right to change her mind after the birth.
The Law Commission's proposals attempt to balance this by including safeguards. Under the new pathway, while the IPs would be the legal parents from birth, the surrogate would retain the right to object and withdraw her consent during a specific window (similar to the current six-week period). If she objects, the case would go to court, which would make a decision based on the child's lifelong welfare. However, the crucial difference is the change in the default position. The burden would shift: instead of the IPs having to apply to gain parenthood, the surrogate would have to act to overturn their status. Critics argue that this change fundamentally weakens the surrogate’s position and her bodily and reproductive autonomy (Horsey, 2017). They contend that the emotional and psychological experience of pregnancy and birth is transformative and that a pre-conception agreement cannot fully account for the bond a woman may feel with the child she has carried.
A further concern is the risk of the commodification of children and women's bodies. While the Law Commission's proposals are adamant that commercial surrogacy should remain illegal and that arrangements should be overseen by non-profit bodies, formalising the process with pre-conception agreements may make it feel more transactional. The argument is that if parenthood can be determined by an agreement made before a child exists, it edges closer to treating the child as a product of a contract rather than as a human being with rights.
Finally, there are practical questions about the new pathway. Its availability would be limited to those using a regulated RSO. This would create a two-tier system: those who follow the new pathway and gain parenthood from birth, and those who do not (for example, in private arrangements or international ones), who would still have to use the old parental order system. This could lead to inequality of access and leave many families still facing the legal limbo the reform is intended to solve.
Conclusion
The current legal framework for surrogacy in the UK is no longer fit for purpose. By designating the surrogate as the legal mother at birth, the law creates a period of damaging uncertainty that is contrary to the welfare of the child and fails to reflect the intentions of the parties. The requirement for a post-birth parental order is a cumbersome and outdated solution to a problem that could be avoided.
Therefore, the law should be reformed to recognise intended parents as the child's legal parents from birth. The new pathway proposed by the Law Commissions of England and Wales and Scotland presents a carefully considered and balanced model for achieving this. By introducing regulated, non-profit surrogacy organisations to oversee arrangements and confirm them before conception, the proposed reform would provide security, clarity, and support for all involved. This would ensure the child’s best interests are served by establishing a secure legal relationship with their intended family from the very start of their life.
The concerns regarding the surrogate's autonomy are valid and significant. However, the proposed reform does not abolish her right to change her mind; it rebalances it. By providing a window for the surrogate to object post-birth, it maintains a critical safeguard, while shifting the legal presumption to reflect the shared intention of the arrangement. The introduction of robust pre-conception safeguards, including independent legal advice and counselling, arguably provides a more meaningful form of protection for the surrogate than the current system. While no reform can be perfect, the Law Commission’s model offers a clear and compassionate path forward. It moves UK surrogacy law away from a reactive, problematic framework towards a proactive, supportive one that prioritises the welfare of the child and respects the reality of modern family creation.
References
Horsey, K. (2017) 'Gestational surrogacy: A call for clarity', Medical Law Review, 25(1), pp. 111-120.
Law Commission. (2023) Building families through surrogacy: a new law. Law Com No 412. Available at: [https://www.lawcom.gov.uk/project/surrogacy/](https://www.lawcom.gov.uk/project/surrogacy/) (Accessed: 15 May 2024).
Re S (Parental Order) [2009] EWHC 2977 (Fam).
Re X (A Child) (Parental Order: Time Limit) [2014] EWHC 3135 (Fam).
Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam).
Re Z (A Child) (No 2) [2016] UKSC 51.
Legislation
Human Fertilisation and Embryology Act 2008
Surrogacy Arrangements Act 1985
