Surrogacy and Parental Orders (HFEA 2008 s.54)
How surrogacy works in UK law — the legal status of intended parents, surrogate mother, and child; the parental-order route under s.54 of the Human Fertilisation and Embryology Act 2008; and the Law Commission's 2023 reform proposals.
Wprowadzenie
Surrogacy in the UK is lawful but tightly regulated. Under the Human Fertilisation and Embryology Act 2008, the surrogate (and her spouse, if any) are the legal parents at birth, regardless of genetic relationship to the child. To transfer legal parenthood to the intended parents, they must apply to the family court for a parental order under HFEA 2008 s.54 (or s.54A for sole-applicants under the Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018, which followed the Re Z (A Child) (No 2) [2016] EWHC 1191 (Fam) declaration of incompatibility). Strict statutory conditions apply: the child must be genetically related to at least one applicant; the surrogate must consent (more than 6 weeks after birth); the application must be made within 6 months of birth; no money may have been paid beyond reasonable expenses (although the court can authorise retrospectively). Surrogacy agreements are unenforceable under the Surrogacy Arrangements Act 1985, but the welfare-of-the-child consideration in the parental-order decision means in practice the courts grant orders even where conditions are imperfectly met. The Law Commission of England and Wales and Scottish Law Commission's joint 2023 final report recommends a 'new pathway' allowing parenthood to vest in intended parents from birth in specified domestic arrangements.
In Brief
In UK law the surrogate (and her spouse) are the legal parents at birth. To transfer parenthood to the intended parents, they apply for a parental order under HFEA 2008 s.54 (couples) or s.54A (sole applicants). Strict statutory conditions apply: genetic link, application within 6 months of birth, surrogate consent after 6 weeks, no commercial payment beyond reasonable expenses. The Law Commission's 2023 final report proposes substantial reform — pending Government response.
Podstawowe zasady
Legal parent at birth — Human Fertilisation and Embryology Act 2008 ss.33-47: the surrogate is the mother; her spouse (if consented to the treatment) is the second parent.
Parental order — s.54 HFEA 2008: applies to a couple; conditions include genetic link, six-month application window, six-week post-birth consent of the surrogate, no commercial payment beyond reasonable expenses, court welfare check.
Section 54A — single-applicant parental orders, added by Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 following Re Z (No 2) [2016].
Welfare paramount — even where one of the statutory conditions is technically unmet, the court can grant the order where the child's welfare requires (Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam) — applied beyond 6 months).
Payment authorisation — court can retrospectively authorise payments beyond reasonable expenses (Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam)).
Surrogacy Arrangements Act 1985 — surrogacy agreements are unenforceable; commercial surrogacy (acting as a middleman for money) is criminalised.
International surrogacy — particular complexities around child's nationality, immigration status, recognition of foreign birth certificates. Always requires the UK parental order if the child is to live in the UK with the intended parents.
Law Commission 2023 report — proposes a new pathway allowing pre-birth agreements that bind from birth where statutory criteria are met; pending Government response and legislation.
Kluczowe ustawy
Human Fertilisation and Embryology Act 2008
Surrogacy Arrangements Act 1985
Children Act 1989
Wiodące orzeczenia
Re Z (A Child) (No 2)
[2016] EWHC 1191 (Fam)
Re X (A Child) (Surrogacy: Time Limit)
[2014] EWHC 3135 (Fam)
Re X and Y (Foreign Surrogacy)
[2008] EWHC 3030 (Fam)
Re G (Surrogacy: Foreign Domicile)
[2007] EWHC 2814 (Fam)
Frequently Asked Questions
Are surrogacy contracts enforceable in the UK?
No. The Surrogacy Arrangements Act 1985 s.1A makes surrogacy agreements unenforceable, even between the parties. The intended parents cannot force the surrogate to hand over the child, and the surrogate cannot force the intended parents to take it. In practice the family court applies the welfare of the child as paramount when issuing or refusing a parental order.
What if the 6-month parental order deadline has passed?
The court has consistently held that the 6-month time limit (s.54(3)) can be relaxed where the welfare of the child requires it. Re X (A Child) (Surrogacy: Time Limit) [2014] confirms the court's broad discretion. Applications years out of time have been granted where the child's status would otherwise be in legal limbo. Counsel should always consider an out-of-time application rather than abandoning the route.
What payments are allowed in UK surrogacy?
Section 54(8) allows 'reasonable expenses' — costs incurred by the surrogate for the pregnancy (loss of earnings, maternity wear, travel, additional food, antenatal care). Commercial payment is not allowed; however, where payments have exceeded reasonable expenses, the court can retrospectively authorise the payment in deciding whether to grant the parental order. The court will not allow surrogacy as a commercial commodity.
What does the Law Commission's 2023 report propose?
A 'new pathway' for surrogacy agreements made domestically that meet statutory criteria: the intended parents would be the legal parents from birth, with the surrogate retaining a right to object within a short post-birth period. This would avoid the current limbo where the surrogate is the legal parent until the parental order is made. The Government has not yet responded with legislation as of 2026; the existing s.54/s.54A regime remains in force.
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