How surrogacy laws currently work in the UK, ahead of major proposed changes
Couples could become a surrogate child’s legal parents at birth under major new proposal to reform UK surrogacy laws.
Under the new plans, the surrogate (the woman who carries the baby) would be able to withdraw her consent up to six weeks after the birth.
But by that point she would have to apply for a parental order to obtain legal parental status instead of the intended parents.
The suggested reforms, published by the Law Commission of England and Wales and the Scottish Law Commission, aim to bring "greater legal certainty, transparency and safeguards against exploitation", and would work better for children, surrogates and intended parents.
Current laws mean that in most cases those raising the baby have no legally recognised relationship with the child until the grant of a parental order, with the surrogate and her spouse or civil partner considered the legal parents of the child until that point.
This means the intended parents cannot make any decisions in relation to the child, including medical treatment.
Read more: How will planned changes to the law on surrogacy affect UK parents?
Professor Nick Hopkins, family law commissioner at the Law Commission, says the changes are needed to overhaul “decades-old laws" which are "outdated and not fit for purpose”.
“Under current law, surrogacy agreements are often a complex and stressful process for all involved,” he said.
“We need a more modern set of laws that work in the best interests of the child, surrogate, and intended parents. Our reforms will ensure that surrogacy agreements are well-regulated, with support and security built into the system from the very beginning.
“By introducing a new regulatory route with greater legal certainty, transparency and safeguards against exploitation, we can ensure that we have an effective regime for surrogacy agreements that places the interests of the child at their heart.”
Watch: UK woman who couldn't carry a child after cervical cancer has become a mum - after her friend was her surrogate
The commission also criticised the current law around payments to surrogates as lacking clarity and being difficult to enforce, and proposes bringing in clear categories of payment that the intended parents will be allowed to make to the surrogate.
To avoid what it describes as “commercial surrogacy” which it said runs the risk of a woman being exploited, it recommends that payments for things like insurance and medical costs be allowed, but general living expenses and compensatory payments should not.
Read more: Childminder becomes a surrogate and gives birth to four babies for other families
Currently UK law says surrogates should not be paid. However, they can receive any reasonable expenses incurred such as maternity clothes, travel expenses and loss of earnings.
The commission also recommended that intended parents should be entitled to improved employment rights including access to a benefit equivalent to maternity allowance and being able to take time off work to attend antenatal appointments.
Elton John and his husband David Furnish also have two sons via a surrogate and footballer Cristiano Ronaldo welcomed twins last year via a surrogate. Earlier this year, Paris Hilton revealed she and her husband, Carter Reum, had welcomed their first child via surrogacy.
Kim Kardashian also used surrogacy to expand her family due to her struggle with preeclampsia and placenta accreta during both her first two previous pregnancies. The couple went on to have daughter Chicago and son Psalm via a surrogate with Kardashian describing the process it as "the best experience".
Sarah Jessica Parker had twins via a surrogate in 2009, conceived with her frozen eggs and her husband’s sperm.
Read more: Rebel Wilson gives baby born by surrogate the middle name Elizabeth 'after the late Queen'
It’s not just celebrities for whom surrogacy is becoming an option. Statistics reveal that the number of parents having a baby using a surrogate in England and Wales has almost quadrupled in the 12 years leading up to when figures were released in 2020.
Parental orders, which transfer legal parentage from the surrogate, rose from 117 in 2011 to 413 in 2020.
The report, by the University of Kent and My Surrogacy Journey, a non-profit organisation which supports surrogates and intended parents, also revealed two-thirds of applicants are now mixed-sex couples often in their 30s or 40s.
What is surrogacy?
Surrogacy is when a woman carries a pregnancy for another couple or individual. In most cases it is because someone cannot carry a pregnancy themselves for health reasons or because they are men in a same-sex relationship.
According to the Human Fertilisation and Embryology Authority (HFEA), there are two types of surrogacy:
Full surrogacy (also known as host or gestational surrogacy) is when the eggs of the intended mother or a donor are used and there is therefore no genetic connection between the baby and the surrogate.
Partial surrogacy (also known as straight or traditional surrogacy) involves the surrogate’s egg being fertilised with the sperm of the intended father. If you go down this route, we recommend you have treatment at a licensed UK fertility clinic.
How much does surrogacy cost in the UK?
You’re not allowed to pay a surrogate in the UK. However, you are responsible for reimbursing any reasonable expenses that the surrogate incurs such as maternity clothes, travel expenses and loss of earnings.
According to Surrogacy UK, intended parents (IPs) should budget approximately £20k for straight surrogacy and £30k for host surrogacy – this includes all expenses for the surrogate, insurance, wills and clinic costs (for the host).
A surrogate's expenses can be from anywhere between £7k and £15k, depending on her personal circumstances, e.g. loss of earnings, rate of childcare, number of children, distance from IPs etc.
There may be unforeseen circumstances such as bed rest, or medical issues that might mean a surrogates expense increase during pregnancy. If a surrogate needs to increase her expenses by over £1k during the pregnancy, then it is referred to the Board of Trustees so that it can be approved.
Read more: Becoming a surrogate mother in the UK: ‘You’re not giving them away, you’re giving them back’
What is the law surrounding surrogacy in the UK?
While surrogacy is legal in the UK, if you make a surrogacy agreement it cannot be enforced by the law.
Gov.uk explains that as it stands at the moment if you use a surrogate, they will be the child’s legal parent at birth, but the proposed new changes by the Law Commission would change that.
Currently, if the surrogate is married or in a civil partnership, their spouse or civil partner will be the child’s second parent at birth, unless they did not give their permission.
However, legal parenthood can be transferred by parental order or adoption after the child is born. Once you have a parental order for the baby, the surrogate will have no further rights or obligations to the child.
Again, new proposals would change this so that IPs could become a surrogate child's legal parents at birth, with the surrogate able to withdraw her consent up to six weeks after the birth.
But at this stage she would have to apply for a parental order to obtain legal parental status instead of the intended parents.
If there is disagreement about who the child’s legal parents should be, the courts will make a decision based on the best interests of the child.
This is a complicated area so you should talk to your clinic early on about nominating a second legal parent so they can support you through the process.
What is a surrogacy agreement?
The intended parents and surrogate can record how they want the arrangement to work in a surrogacy agreement.
It is important to note, however, that surrogacy agreements are not enforceable by UK law, even if you have a signed document with your surrogate and have paid their expenses.
What are the rules regarding birth when it comes to surrogacy?
Surrogacy laws and arrangements vary between countries and can be considerably complex.
“For most couples who prefer the absolute certainty and protection afforded by the law, they travel abroad to countries such as the US or Canada for their surrogacy arrangements,” Andrew Spearman, head of family law and surrogacy specialist at A City Law Firm previously told Yahoo UK.
“In the US the surrogacy is governed by contract law and all the rights, payments and ‘rules’ during the surrogacy (for both surrogate and intended parents) are codified in this one document.”
The contact will make provisions specifically to deal with: who is to be present at the birth, who gets to first hold the child and whether the surrogate mother has the opportunity at all, parental rights generally and at what point the surrogate surrenders custody of the child.
“In the UK, we do not have any similar pre-birth orders, for various reasons, but mainly because of public policy in this area and the surrogate’s absolute right to be the legal mother of any child born to her until the parental order is granted by the court,” Spearman added.
According to Spearman, as it currently stands the surrogate can't give her consent to the transfer of legal parenthood until at least six weeks after the birth and this can be withdrawn at any point up to the court order. “The court cannot force the surrogate to change her mind,” he explains.
In practice, it is rare for a surrogate to withhold consent. “However, when it does happen then the consequences are catastrophic for the intended parents and their child.”
Again this would change under the new proposals.
The commission described its proposed reforms as a way to “provide a robust new system to govern surrogacy, which will work better for children, surrogates and intended parents”.
Are surrogates entitled to maternity leave?
In the UK, surrogates have the right to 52 weeks’ maternity leave, regardless of whether she keeps the baby or not.
“What a birth mother does after the child is born has no impact on her right to maternity leave,” the Government site explains.
This is another area proposed changes could address, with the Law Commission recommending that intended parents should be entitled to improved employment rights including access to a benefit equivalent to maternity allowance and being able to take time off work to attend antenatal appointments.
Where to go for further information and advice?
Additional reporting PA.