SURROGACY, LOOPHOLES AND THE LAW 

Published on 24 April, 2025 | Emma Godefroy, Emma Dewhurst

Change is something which rarely ever happens without debate.

Great shifts in Britain’s households over the course of recent decades have prompted considerable discussion.

In the last few weeks, the increasing reliance on surrogacy by individuals who wish to start or add to a family has once more generated headlines.

Media have reported concerns raised by a coalition of women’s rights groups regarding an increase in foreign surrogacy agreements.

According to The Times, the groups have written to ministers claiming that such agreements amount to commercial surrogacy “through the back door” and lead to the exploitation of women overseas (https://www.thetimes.com/article/2b8215f0-3a10-4342-a073-79e1b97692a5?shareToken=28a706e492ece5804ad22ef0f29af8da).

They have called for people who have babies through surrogates abroad to be prosecuted.

I should point out that commercial surrogacy in this country is banned, although foreign surrogacy agreements are certainly not illegal.

Figures made available by the Ministry of Justice (MoJ) would appear to suggest that surrogacy is indeed on the rise (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-october-to-december-2024/family-court-statistics-quarterly-october-to-december-2024).

As The Times has made clear, Britons having children through a foreign surrogate must obtain a Parental Order, making them the legal parent of the child in this jurisdiction, regardless of agreements made or contracts entered into in the surrogate’s country or country of birth.

Last year, there were 592 applications for Parental Orders in England and Wales, up almost one-quarter on the figure for 2014.

However, the number of orders which were granted was up 94.2 per cent over the same period – from 242 to 470.

The process by which orders are made or not is very carefully scrutinised by the courts who are guided by the Human Fertilisation and Embryology Act 2008 (https://www.legislation.gov.uk/ukpga/2008/22/section/54).

Section 54 of the Act contains a number of key criteria which guide the courts in determining whether a Parental Order is appropriate, including there needing to be a genetic connection between one or both of the Intended Parents and the child.

That is not to say that issues do not still arise.

Regular readers of this ‘blog will recall that I wrote an article in November last year, following a ruling handed down by Mrs Justice Theis in the Family Court in a matter in which I acted (https://hallbrown.co.uk/surrogacy-and-a-cautionary-reminder/).

Mrs Justice Theis said that she regarded her judgement as a “cautionary reminder of the need for those embarking on surrogacy arrangements, particularly those that cross a number of different jurisdictions, to carefully consider, in advance, the arrangements, consequences and implications of that arrangement” (https://www.judiciary.uk/wp-content/uploads/2024/10/Re-Z-Foreign-Surrogacy.pdf).

Very helpfully, she set out a list of 16 points which she believed applicants need to consider before entering into a surrogacy agreement.

One of the most fundamental elements highlighted by Mrs Justice Theis was that of seeking legal advice from specialist solicitors, “especially if it involves another jurisdiction” in order to avoid potential pitfalls.

That should always be about providing guidance to convince the courts that Intended Parents have acted in accordance with the terms of the law and the best interests of the child.

When it comes to the cases in which I have been involved that includes keeping a very detailed record of any and all payments made to surrogates in order to demonstrate that everything has been done properly.

Engaging in thorough due diligence and being scrupulous when it comes to the finances concerned relating to a surrogacy agreement are critically important, not least because a Parental Order is transformative – for the Intended Parents, the surrogate and, not least, the child.

The fact that close to 80 per cent of applications made in 2024 were successful, compared to 50 per cent of those submitted a decade earlier, shows that applicants are obtaining the relevant advice and meeting what is required legally.

Only two years ago, of course, the Law Commission recommended reform of domestic surrogacy law, proposing a new regulatory “pathway” to simplify the process and intended parents would legal parents of surrogate children from birth (https://lawcom.gov.uk/project/surrogacy/).

Whilst Rishi Sunak’s Government acknowledged that the Commission’s project was important, it decided not to introduce legislation on the grounds that there wasn’t sufficient time in the parliamentary calendar to proceed.

The current administration has indicated that it is weighing up whether to act or not (https://questions-statements.parliament.uk/written-questions/detail/2024-10-09/8352).

I do not believe that any delay in making that assessment will blunt the desire of many couples to explore surrogacy as a route to becoming parents.

To ensure that any such efforts are successful, lawful and to ward off the charge that they might be exploitative, taking legal advice as early as possible in the process remains absolutely essential.