Is surrogacy legal in Britain? Yes, but the rules are specific, and they have changed over time.

In England and Wales, the law allows altruistic surrogacy arrangements, but it bans commercial surrogacy and controls who is recognised as the legal parent at birth. In this article our surrogacy solicitors explain the history of surrogacy law  but if you are interested in how surrogacy works in practical terms, you may want to read: How Does Surrogacy Work in the UK?

Early Legal Landscape

Before the 1980s, the United Kingdom had no statute governing surrogacy. The few arrangements that did take place relied on informal agreements, and there was no clear mechanism for transferring legal parenthood from the surrogate to the intended parents. Growing public concern and several high-profile international cases prompted Parliament to act.

The Surrogacy Arrangements Act 1985

The Surrogacy Arrangements Act 1985 was the first dedicated legislation. It confirmed that surrogacy itself was not illegal, but it made it an offence to profit from arranging or advertising surrogacy. Agencies could operate only on a not‑for‑profit basis, and any agreement was unenforceable in court. The 1985 Act created the foundation for the position that remains today: altruistic surrogacy is lawful, commercial surrogacy is not.

Human Fertilisation and Embryology Acts

The Human Fertilisation and Embryology Act 1990 (HFEA 1990) and its major update in 2008 filled the gaps left by the 1985 Act. They introduced the concept of a parental order, the order that transfers legal parenthood to the commissioning parents once certain criteria are met. The 2008 Act also modernised the language of parenthood and removed references that assumed heterosexual couples.

Key requirements for a parental order include:

• At least one intended parent must have a genetic link to the child.
• The child must be living with the applicants in England or Wales at the time the application is made.
• The application must be lodged within six months of birth.
• The surrogate and anyone else who is a legal parent at birth must freely consent.

Parental Orders: Establishing Legal Parenthood

Until the parental order is granted, the surrogate (and her spouse or civil partner if she has one) remains the child’s legal parent. A parental order extinguishes those rights and grants full parental responsibility to the intended parents. This route avoids adoption proceedings and results in the issue of a new birth certificate naming the intended parents.

Family courts pay close attention to the payments made to the surrogate. Where expenses appear excessive, the court can still grant the order if it is in the child’s best interests, but judges will scrutinise sums carefully.

Permitted Payments and Reasonable Expenses

British law does not set a fixed list of expenses, but the following are commonly accepted:

Reasonable expenses might cover:

• Maternity clothing and travel to medical appointments.
• Loss of earnings for the surrogate during pregnancy and recuperation.
• Child‑care costs for the surrogate’s existing children.
• Pregnancy supplements, counselling and legal advice.

Courts consider whether each payment is genuinely a repayment of a cost rather than a fee. It helps to keep receipts and a clear written record.

Surrogacy For Same Sex Couples

Is surrogacy legal in Britain for same sex couples? Yes. Since the HFEA 2008 came into force in April 2010, couples in a marriage, civil partnership or durable relationship (regardless of gender) can apply jointly for a parental order. The criteria are the same as for opposite‑sex couples. The couple designate themselves as “Applicant 1” and “Applicant 2”; the court does not treat one as the default mother or father.

Same sex intended parents should think early about parental leave, registration of the birth and how they will explain conception to their child in an age-appropriate way. Specialist legal advice from a surrogacy law solicitor ensures the paperwork is correct from the outset.

International Surrogacy Considerations

Many British intended parents look abroad because the pool of UK surrogates is small. While overseas surrogacy is not unlawful, it raises extra steps:

• Foreign birth certificates often name the intended parents, but English law still treats the surrogate as the mother until a parental order is made.
• Immigration rules require a visa or British passport for the child to travel home.
• The family court will review any payments that exceed reasonable expenses, even if those payments were legal in the overseas jurisdiction.

Obtaining early legal advice from a surrogacy law firm (like Tyrer Roxburgh) helps to avoid delays at the border and in court.

Proposed Reforms and Future Direction

In March 2023, the Law Commission of England and Wales and the Scottish Law Commission published their long‑awaited report and draft Bill on surrogacy. The report does not itself change the law, but it recommends a new surrogacy pathway designed to make domestic arrangements safer and clearer.

Under the proposal, intended parents who follow the pathway would be the child’s legal parents from birth, provided that a regulated, not‑for‑profit surrogacy organisation has confirmed that:

• The surrogate is at least 21, and the intended parents are at least 18.
• At least one intended parent has a genetic link to the child.
• The parties have undergone medical screening, enhanced criminal record checks, counselling and independent legal advice.
• A written agreement has been approved after a welfare assessment of the future child.

Other recommendations include a national Surrogacy Register to help children access information about their origins, and a schedule of permitted payments (for example, pregnancy‑related expenses, insurance and a modest recuperative holiday) with all other payments prohibited. Intended parents would have to sign a statutory declaration that payments fall within the authorised categories.

The Government’s interim response in November 2024 cited limited Parliamentary time, so these reforms are not yet law. Until legislation is passed, the current parental order framework remains in place.

Practical Steps for Intended Parents

Choosing surrogacy is a major decision. Those considering the journey should:

• Talk openly with potential surrogates about expectations and boundaries.
• Draft a clear surrogacy agreement that covers expenses, decision‑making during pregnancy, and contact after birth. Although unenforceable, it records intentions.
• Obtain independent legal advice before surrogacy begins. Our dedicated surrogacy solicitors can guide you through every stage.
• Arrange counselling for all parties, as recommended by the HFEA.
• Keep meticulous records of payments and receipts to facilitate the parental order application.

Surrogacy is legal in Britain provided it is altruistic and the parental order process is followed. The law has evolved from a blanket prohibition on profit-making arrangements in 1985 to today’s more inclusive framework that recognises same sex couples and single parents. Further changes are likely, but for now, intended parents must navigate the existing rules with care.

How Tyrer Roxburgh Can Help

If you are planning your own surrogacy journey, Tyrer Roxburgh’s experienced surrogacy law team is ready to assist. We can draft agreements, advise on legal requirements, and represent you in the parental order application. Get in touch to arrange a confidential consultation.