How Does Surrogacy Work in the UK? The Legal Perspective

Surrogacy in the UK is legal, but the legal rules are strict and the surrogate is treated as the child’s legal mother at birth. This article explains how surrogacy works, what intended parents need to know about parental orders, what expenses can be paid, and why legal advice is important before starting a surrogacy arrangement.

In short, surrogacy is legal in Britain but carefully regulated route to parenthood that balances the welfare of the child with the rights of the surrogate and the intended parents. In this article our surrogacy solicitors explain the current legal framework in England and Wales, highlight common questions from both heterosexual and same‑sex couples and looks at more complex situations.

How Does Surrogacy Work in the UK?

Surrogacy is an arrangement in which a woman (the surrogate) carries and gives birth to a child for another person or couple (the intended parents).

There are two main forms:

• Traditional surrogacy: The surrogate’s own egg is fertilised with sperm from the intended father or a donor. She is both the genetic and the gestational mother.
• Gestational surrogacy: An embryo created with the intended parents’ (or donors’) gametes is transferred to the surrogate. She has no genetic link to the child.

Most UK arrangements today are gestational because they separate genetics from pregnancy and can feel more straightforward for everyone involved.

There are currently three key legal statutes that set out the legal framework for surrogacy in the UK:

• Surrogacy Arrangements Act 1985 (SAA 1985)
• Human Fertilisation and Embryology Act 2008 (HFEA 2008)
• Family Procedure Rules 2010 (Part 13: parental orders)

These acts set the ground rules for who is a legal parent at birth, what payments can be made, and how parenthood is transferred after the child is born.

Who Can Use Surrogacy?

The law is neutral about sexual orientation. Intended parents may be:

• A married couple (opposite‑sex or same‑sex)
• Civil partners
• An unmarried couple in an enduring relationship
• A single person

At least one intended parent must be genetically related to the child, and applicants must be 18 or over when they apply for the court order that transfers parenthood.

Finding a Surrogate and Reaching Agreement

In England and Wales, commercial surrogacy agencies are illegal, but not‑for‑profit organisations such as Surrogacy UK, Brilliant Beginnings, and COTS can introduce intended parents to potential surrogates. Families sometimes turn to a friend or family member.

It is sensible to draw up a surrogacy agreement covering practical points such as:

• Who will attend scans and antenatal appointments
• The level of contact during pregnancy
• Birth plans and hospital arrangements
• Expected expenses
• Handover arrangements after birth

These agreements are not legally enforceable, but they can help show the Family Court that everyone made informed decisions from the outset.

Fertility Treatment and Consent

All embryo transfers must take place in an HFEA‑licensed clinic. The clinic will ask every party to sign detailed consent forms covering:

• Use and storage of eggs, sperm and embryos
• Disclosure of donor information to the child at 18
• Future use of any stored embryos

Make sure the forms reflect your wishes, as they affect who is legally treated as a parent at birth.

Legal Motherhood and Fatherhood at Birth

Under section 33 of HFEA 2008, the woman who gives birth is always the legal mother, regardless of genetics. If she is married or in a civil partnership, her spouse or civil partner is normally the second legal parent, unless they did not consent to treatment. This rule applies even when the embryo was created with an egg from another woman.

The practical effect is that the surrogate registers the birth and is recorded as the mother. The intended parents must then apply for a parental order to change parenthood permanently.

Parental Orders: Transferring Parenthood

A parental order reassigns legal parenthood from the surrogate (and her spouse, if any) to the intended parent or parents. Here are some key points to keep in mind:

• Timing: The application must be lodged at least six weeks after birth and no later than six months. Extensions are possible in exceptional circumstances, but do not rely on discretion.
• Consent: The surrogate and anyone who is a legal parent at birth must give full, free and unconditional consent after six weeks post-birth.
• Genetic link: At least one applicant must be genetically related to the child, unless the court exercises its rarely used discretion to waive the requirement.
• Payments: The court must be satisfied that no more than “reasonable expenses” were paid, or that any wider payments are justified in the child’s best interests.

A judge or magistrate sitting in the Family Court will consider a welfare checklist and, if satisfied, grant the order. The child then receives a new birth certificate naming the intended parents.

What are Reasonable Expenses?

The court has accepted expenses such as:

• Maternity clothing and supplements
• Travel to clinic and hospital appointments
• Loss of earnings
• Childcare for the surrogate’s own children
• Additional housekeeping costs during late pregnancy and recovery

Any payment beyond expenses could potentially still be authorised, but the intended parents must explain why it was unavoidable.

Rights and Responsibilities of The Surrogate

During pregnancy, the surrogate retains the right to make day-to-day decisions about her health and the pregnancy. She can choose where to give birth, consent (or refuse) to medical procedures and decide who is present in the delivery room.

After birth, she remains the legal mother until a parental order takes effect. She may withdraw consent to that order at any time before it is granted, although contested cases are extremely rare.

Surrogates are entitled to 52 weeks’ maternity leave if they are employed, even though they plan to hand the baby to the intended parents.

Rights of Intended Parents

Intended parents do not acquire parental responsibility until the parental order is made. However, they may still:

• Accompany the surrogate to scans (with her permission)
• Participate in birth planning
• Stay with the baby in hospital if the Trust agrees

Once the order is made, they become the child’s legal parents for all purposes, including inheritance, nationality and decision-making.

Complex Situations and Disputes

Surrogacy arrangements do not always follow the simple “intended parents plus surrogate” model. Below are examples of situations that frequently test the present law in England and Wales.

Split Genetics and Gestation

One woman provides the egg, and a second woman carries the pregnancy. The carrier is the legal mother at birth under section 33 HFEA 2008, even though she has no genetic tie, while the egg donor has none of the automatic legal rights that attach to parenthood. A parental order can transfer parenthood to the genetic mother (and her partner, if any), but it cannot keep the carrier listed as a second legal mother. If the adults wish the carrier to keep a recognised role, they may apply for a Child Arrangements Order that gives her parental responsibility or defined contact.

International Gametes, UK Pregnancy

An embryo created abroad (using donor eggs, donor sperm or both) is transferred to a surrogate in England. Current legislation requires at least one applicant to be genetically related to the child. If neither intended parent has that link, a parental order is not available, and the usual pathway is an adoption order once the surrogate consents. Clear documentary evidence of donor consent and an itemised record of payments will still be essential for any court application.

Surrogate Changes Her Mind

Although exceedingly rare, a surrogate can withdraw consent to a parental order up to the moment it is made. Reported disputes are few—legal commentators note only a handful of UK cases in which the surrogate did not hand the baby over at birth. Where a disagreement does reach court, the judge considers genetics, gestation, the parties’ intentions and, above all, the child’s welfare.

Possible outcomes include:

• Child lives with the intended parents under a Child Arrangements Order while the surrogate remains the legal mother. This happened in cases such as Re N (A Child) [2019] EWFC 21 and Re H (A Child) [2017] EWCA Civ 1798, where the court found the intended parents better able to meet the child’s long‑term needs.
• Child remains with the surrogate. This is rarer still but has occurred, for example in Re TT (Surrogacy) [2011] EWHC 33 (Fam), where the judge decided the existing bond with the surrogate outweighed the intended parents’ links.

Whatever the result, the court’s paramount concern is the child’s welfare, not the adults’ expectations.

Post-Birth Relationship Breakdown

If intended parents separate before the parental order is granted, they may continue jointly, or one partner can proceed alone if the other consents. Where cooperation collapses, the court decides whether a sole parental order better serves the child than leaving legal parenthood with the surrogate.

In every complex scenario, the child’s lifelong welfare is the court’s paramount concern. Because the statutory scheme was written for straightforward arrangements, unusual facts make early, specialist legal advice essential.

International Surrogacy Considerations

Going abroad for surrogacy can shorten waiting times and give access to full‑service agencies, but it introduces an extra layer of law. The rules that apply in the country of birth will sit alongside, not replace, the law of England and Wales. You therefore need two strands of legal advice: one local to the birth country and one here.

At a minimum you should confirm:

• Legality. Surrogacy must be lawful in the destination country. If local law treats the practice as void or criminal, you could face prosecution there and later difficulties here.
• Parental status at birth. Many jurisdictions issue pre-birth orders naming the intended parents, but those orders are not recognised automatically in England and Wales. The surrogate will still be the legal mother here until a Family Court grants a parental order.
• Exit process. The Foreign, Commonwealth and Development Office will not issue a British passport until you can show that at least one parent is British and that you have parental responsibility under local law. In countries such as the United States, the whole process can take two to four weeks. But in many others, it may be longer. Build this time into your plans and budget for accommodation and insurance while you wait.
• Immigration for the surrogate and baby. If the surrogate is not a UK national, she cannot travel here solely to hand over the child. The baby’s route to the UK will depend on nationality, visa rules and the availability of emergency travel documents.
• Payments. UK courts will scrutinise any compensation that looks like a commercial fee. Keep all receipts and obtain a breakdown from the foreign agency so you can justify the figures as reasonable expenses when you apply for your parental order.

There are also domicile requirements to consider. At least one applicant must be domiciled in the UK or Channel Islands on the day of the parental order application and at the time of the hearing. Simply staying abroad for the pregnancy does not usually dislodge domicile, but prolonged stays or relocating for work could raise questions.

Proposed Reforms and Future Direction

In March 2023, the Law Commission of England and Wales and the Scottish Law Commission published a draft bill proposing a “new pathway” in which intended parents would be the legal parents from birth, provided they register the agreement in advance with an HFEA‑licensed clinic and meet strict screening criteria. As of July 2025, the draft bill has not yet been enacted. Until Parliament passes new legislation, the parental order system described above remains the law.

Practical Tips Before You Start

Before you move ahead, it helps to put some simple building blocks in place.

1. Take early legal advice. A specialist surrogacy solicitor can steer you around pitfalls before they arise. Contact us to book a fixed fee consultation. As a specialisy surrogacy law firm, we undertstand how approach surrogacy from a legal perspective. Surrogacy law is niche, and the paperwork must be completed with care.
2. Join a support organisation. Peer experience makes the emotional journey easier and introduces you to tried‑and‑tested surrogates.
3. Use a licensed clinic. Treatment abroad or at home without professional oversight can create unforeseen legal complications.
4. Keep detailed records of expenses. Courts like transparency. Receipts and a running spreadsheet reduce the risk of awkward questions later.
5. Plan for the six-week window after birth. The surrogate cannot sign consent until then, so discuss where everyone will stay and how the baby will be cared for during that time.

How Tyrer Roxburgh Can Help

Surrogacy combines family law, fertility regulation and often international legal elements. Our dedicated surrogacy solicitors at Tyrer Roxburgh have guided many heterosexual and same‑sex families through the process, from drafting clear surrogacy agreements to securing parental orders in complex cases. We act decisively, keep costs transparent and stay in close contact with you and your surrogate.

Frequently Asked Questions

Is surrogacy legal in the UK?

Yes. Surrogacy is legal in the UK, but commercial surrogacy is not permitted and surrogacy agreements are not legally enforceable. This means intended parents and a surrogate can record their intentions in an agreement, but the court is not bound to enforce it. The intended parents usually need a parental order after the child is born to become the child’s legal parent.

What is a surrogate?

A surrogate is a person who carries and gives birth to a child for another person or couple, known as the intended parent or intended parents. In UK law, the surrogate is the child’s legal mother at birth. If the surrogate is married or in a civil partnership, their spouse or civil partner may also be treated as the child’s second legal parent at birth, unless they did not consent to the treatment. Legal parenthood can usually be transferred to the intended parents by a parental order after birth.

How does surrogacy work?

Surrogacy usually starts with an agreement between the intended parents and the surrogate about how the arrangement will work. Conception may involve the surrogate’s own egg, known as traditional or straight surrogacy, or an embryo created using the intended parents’ or donors’ eggs or sperm, known as host or gestational surrogacy. After the child is born, the intended parent or parents usually apply to the Family Court for a parental order. If granted, the parental order transfers legal parenthood from the surrogate to the intended parents and gives the child a new birth certificate naming the intended parents.

How much is surrogacy?

There is no fixed cost for surrogacy in the UK. A surrogate cannot be paid a fee, but they can be reimbursed for reasonable expenses such as maternity clothes, travel, loss of earnings and other pregnancy-related costs. The HFEA refers to Surrogacy UK figures suggesting surrogate expenses are often around £10,000 to £15,000, but this depends on the circumstances. Intended parents may also need to budget for fertility clinic treatment, donor costs, counselling, insurance, legal advice, and the court fee for a parental order application.