Over the course of recent decades, the way in which families are formed in the UK has undergone a succession of tremendous shifts.

One has been the increase in people opting to pursue surrogacy agreements in order to fulfil their dream of having children.

That particular situation is not without its consequences and uncertainties, created in part by the tensions wrought by change and relevant laws which are now decades old.

In the UK, surrogacy is governed by the Surrogacy Arrangements Act 1985 (https://www.legislation.gov.uk/ukpga/1985/49) and the Human Fertilisation and Embryology Act 2008 (https://www.legislation.gov.uk/ukpga/2008/22/contents).

Only altruistic surrogacy – by which just the “reasonable expenses” of surrogates can be covered – is allowed.

As things stand, surrogates remain the legal parents of children born as a result of a surrogacy arrangement until Intended Parents obtain something known as a Parental Order.

The most recent figures published by the Ministry of Justice (MoJ) revealed that there were almost 25 per cent more applications for Parental Orders last year than in 2014 (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-october-to-december-2024/family-court-statistics-quarterly-october-to-december-2024).

Yet bodies such as the Law Commission have highlighted how despite being more popular, the process of obtaining a Parental Order can take up to a year after a birth to complete, restricting the ability of intended parents to make key decisions about the child’s upbringing.

Two years ago, the Commission produced a report containing a number of recommendations about how laws which it regarded as “outdated and not fit for purpose” might be improved (https://lawcom.gov.uk/project/surrogacy/).

Its suggestions included the creation of “a new regulatory route for domestic surrogacy”, under which Intended Parents would become legal parents of a child from birth, rather than after any protracted wait for a Parental Order.

At the time the plans were unveiled, my colleague Emma Hubbard described them as “transformational” (https://www.thetimes.com/article/4535801e-cd70-11ed-adc8-dcfa63cb4163?shareToken=7aa11ed29305ebe89aabcabddc958446).

Although Rishi Sunak’s Government declined to act on the proposals, hopes were raised when it emerged that Labour Health Minister Baroness Merron was to meet the Commission to discuss whether reform might indeed take place.

Now, a letter from the Minister to the Commission has made clear that due to other “key priorities”, change will not take place – at least for the time being (https://cloud-platform-e218f50a4812967ba1215eaecede923f.s3.amazonaws.com/uploads/sites/54/2025/04/Letter-from-Baroness-Merron.pdf).

Baroness Merron has not completely dismissed the prospect of change happening, though. “We will publish a government response as time allows,” she said, “and will look to consider this issue in the future”.

As someone who has represented a number of Intended Parents and surrogates, I have told The Times that this continued delay is in no-one’s best interests (https://www.thetimes.com/article/78a23be0-36b9-410a-ae19-3c210ecd6cf7?shareToken=c322e6ac23d595eb30a554818a853e33).

The Law Commission’s proposals would, in my opinion, constitute a huge improvement on the current system, offering important structure during a child’s critical first year of life.

Whilst the fact that new legislation has not been entirely ruled out is to be welcomed, it  provides no immediate clarity for individuals who view surrogacy as the most suitable route to parenthood.

It also means that, in the meantime, we are likely to see more people pursuing surrogacy arrangements overseas.

Again, MoJ data shows that the number of applications for Parental Orders last year relating to children born abroad was more than double the figure in 2018.

I happen to think that most people would prefer the UK’s altruistic system here to a more commercial arrangement, not least because of the potential for legal complications.

Important guidance about foreign surrogacy was one of the central elements in a ruling handed down by a Family Court judge, Mrs Justice Theis, in a matter in which I acted (https://hallbrown.co.uk/surrogacy-and-a-cautionary-reminder/).

She set out a list of 16 points which were important for people to consider before embarking on a surrogacy agreement overseas (https://www.judiciary.uk/wp-content/uploads/2024/10/Re-Z-Foreign-Surrogacy.pdf).

Due to the Government’s decision not to proceed with the Law Commission’s recommendations, the advice of Mrs Justice Theis has become even more essential in order to avoid the possibility of serious parental pitfalls.