UK surrogacy law: history and reform

The UK’s surrogacy laws were written more than thirty years ago and are woefully out of date and out of step with modern understanding of families. Under the current law:

• The surrogate and her spouse are the legal parents of the baby born
• Surrogacy agreements are unenforceable
• Parents who have children through surrogacy overseas are the legal parents in the country where their child is born but not in the UK
• Parenthood is transferred to the intended parents through a court process which takes up to a year after the birth, and has problematic and outdated criteria
• The law appears to restrict payments to surrogates to ‘reasonable expenses’ but in reality the courts routinely authorise compensation, and the rules are both confusing and unenforceable
• In the UK it is illegal to advertise, and for surrogacy agencies to make a profit

None of this works well for parents, surrogates or – most importantly – for children.

Surrogacy law with its roots in the 1980s

In the 1980s surrogacy was viewed with suspicion and concern, and views about children being conceived by single and same-sex parents were very different to today.

The Surrogacy Arrangements Act 1985 was rushed through Parliament as a reaction to media attention on the ‘baby Cotton’ case (in which surrogate Kim Cotton had given birth for a Swedish couple for a payment, and was vilified by the British press).  It was hoped that restricting the arrangement of surrogacy would smother the practice before it developed.

The Human Fertilisation and Embryology Act 1990 soon after provided that surrogacy arrangements were unenforceable but it also created a legal mechanism (parental orders) for ratifying surrogacy arrangements retrospectively where the baby had been handed over and everyone agreed.  The provisions creating parental orders were tacked on to the Bill at the last minute, rather than being properly designed as a framework for surrogacy.

In 1997, the Labour government commissioned a report on surrogacy law (the Brazier Report).  It recommended new legislation to manage surrogacy properly, a tightening up of the rules on payments, and regulation of surrogacy agencies by the Department of Health.  However, none of the Brazier Report’s recommendations were ever implemented.

Positive steps forward in recent years

Over the past 15 years surrogacy has been a much more accepted and understood way of building a family, and there have been various changes to the law, all progressive.

In 2008, as part of the Human Fertilisation and Embryology Act 2008:

• Non profit-making surrogacy agencies were officially legalised, and
• The categories of parents who could apply for a parental order were extended to include same-sex and unmarried couples.

From 2008, the UK High Court began ratifying international surrogacy cases.

In 2009, the embryo storage rules were changed to remove a longstanding rule that surrogacy patients could not extend storage of embryos in the same way as patients who could carry their own pregnancy.

In 2012, the government announced its intention to introduce maternity leave rights for parents through surrogacy.  These changes came into effect in April 2015.

In 2013, the HFEA updated its guidance on surrogacy, creating specific forms and implementing a more flexible interpretation of the law on parenthood.

In 2016, the government told Parliament that it would ask the Law Commission to undertake a review of UK surrogacy law.

In 2019, the law was changed to allow single parents to apply for parental orders.

Why surrogacy law still needs to change

While these represent positive steps forward, there is much more to do.

With a legal framework which actively discourages surrogacy and seeks to make it a risky enterprise for all, it is not surprising that not enough UK surrogates come forward. The surrogacy framework feels murky, and the law does not support a surrogate’s commitment to carry a child for someone else. The UK’s non-profit surrogacy organisations (which have long supported intended parents and surrogates to ensure smooth arrangements in the absence of a solid legal basis) often have to close their doors to new intended parents due to the shortage of UK surrogates. Increasing numbers of UK parents are therefore making surrogacy arrangements informally online, and going overseas to countries which offer legally recognised surrogacy.

Informal UK arrangements are often frayed with tensions and feelings of vulnerability, and people are left to muddle through without any legal process until after the child is born. Internationally, countries where ethical and legal surrogacy is available are too expensive for the majority of parents, while elsewhere there is risk of exploitation. Children born through international surrogacy are not protected, with the law leaving newborns stranded overseas ‘stateless and parentless’.

In managing the ever-increasing numbers, the current law is being stretched to breaking point. High Court judges have described the law as ‘irreconcilably conflicting’ and ‘the very antithesis of sensible’ and, in case after case, have called for ‘better regulation’ of surrogacy in the UK.

Working towards surrogacy law reform

At Brilliant Beginnings and NGA Law, we have campaigned for UK surrogacy law reform since 2007. Natalie first proposed progressive changes to surrogacy law, working with MPs and members of the House of Lords, when the Human Fertilisation and Embryology Bill was going through Parliament in 2007/8. Although these were not implemented, we have continued to campaign for sensible surrogacy law in the UK.

Law Commission review of UK surrogacy law

The Law Commissions of England and Wales, and Scotland are currently engaged in a project to undertake a full review of UK surrogacy law and to recommend how it should change. The Law Commissions began their surrogacy project in 2018, and are currently consulting on their provisional proposals, with their final report now expect in spring 2023.

How we think UK surrogacy law needs to change

We need a proper legal framework for surrogacy in the UK which works in a global context and reflects the UK’s values of putting children’s welfare first. Surrogacy is not going away. To manage it properly, and to make safe ethical surrogacy more accessible, we are calling for:

• A legal mechanism enabling the intended parents to be recognised as the child’s legal parents from birth
• Law which reflects modern reality and is workable for all families with children born through surrogacy, wherever in the world
• Written surrogacy agreements and other sensible steps to be encouraged before conception in UK surrogacy to help safeguard all involved
• Prompt recognition of the status of children born through surrogacy overseas, ending the long wait to come home
• Clarity that UK law already permits surrogates to be compensated as part of their expenses, allowing this issue to be dealt with more honestly and transparently
• The family court deciding what is in the child’s best interests if there is a dispute, so that children’s welfare remains paramount (such cases being rare in practice)
• Within the existing non-profit model of UK surrogacy arrangement services, more workable rules and an abolition of the restrictions on advertising
• Rights to information (accessible in adulthood) for children born through surrogacy in the UK and overseas, in line with the law on gamete donation.

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