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Surrogacy is increasing in popularity in England and Wales as an alternative route to parenthood, making parenthood accessible to a wider range of families. However, the law around surrogacy is England and Wales is complex and there are certain legal hurdles to be overcome for intended parents exploring this option.
The Baby’s Mother
In England and Wales, the person who gives birth to the baby will always be treated as their legal mother. If they are married or in a civil partnership at the time of the birth, in many cases their spouse/civil partner will be treated as the baby’s second legal parent.
Some intended parents and surrogates may try to get around this by reaching an agreement between themselves about who will be treated as the baby’s legal parent(s). However, surrogacy agreements are not legally recognised in England and Wales. This means that even if the intended parents and the surrogate have agreed and/or signed a document regarding who will be treated as the baby’s parents after the birth, it will not be recognised or upheld by the Court in England and Wales.
In some cases, intended parents will seek to circumvent this issue by entering into a surrogacy arrangement abroad where any agreement between them and the surrogate would be legally binding. However, the Court in England and Wales will not uphold a surrogacy agreement even if it is legally recognised in the country where it was entered into.
Need for a Parental Order
In order for the surrogate’s rights to be extinguished, and for the intended parents to be granted the appropriate legal rights and recognition as the baby’s parents, they must obtain a Parental Order from the Court. This will remove the rights from the surrogate and grant the appropriate rights to the intended parents.
A Parental Order can only be applied for after the baby has been born and when the family are living together. It is therefore important that families using surrogacy arrangements abroad carefully consider any possible immigration issues that may arise with bringing their baby back to England and Wales after the birth. These sorts of considerations should ideally take place as early as possible, to streamline the post-birth process as much as possible.
Intended parents and surrogates should also be aware that the granting of a Parental Order will be strictly dependent on the surrogate consenting to the order being made. Under the law in England and Wales, the surrogate cannot validly give consent to the Order until 6 weeks after the baby has been born. This means that even if the intended parents and surrogate have agreed that the surrogate will give up her rights following the birth, the surrogate will need to confirm their consent again following the child’s birth. Both the intended parents and the surrogate should therefore be aware that the surrogate will need to remain involved in the process, at least to some degree, following the child’s birth whilst the Parental Order process is ongoing in England and Wales.
Criteria for a Parental Order
The criteria for a Parental Order are set out in sections 54 and 54A of the Human Fertilisation and Embryology Act 2008. In order to be eligible to apply:
- The child must be carried by a woman who is not one of the applicants
- The child must be carried as a result of an embryo or sperm and eggs being placed in the woman, or as a result of artificial insemination
- The gametes of at least one of the applicants must have been used to create the embryo
- Where there are two applicants, they must be husband and wife, civil partners, or two people living as partners in an enduring family relationship (NB: this does not prohibit sole applications)
- Other than for costs reasonably incurred in the course of the arrangement, no money must change hands between the intended parent(s) and the surrogate (especially not in exchange for the order being made, consent being given (see above), the child being handed over, or arrangements being made with a view to a Parental Order being made)
When to Seek Legal Advice
Where the child is born under an arrangement outside of England and Wales, if the intended parents intend to bring the child to England and Wales, then both the intended parents and the surrogate should take legal advice at the earliest possible opportunity and certainly before any arrangement is entered into.
It will be necessary for the intended parents to obtain a Parental Order to ensure that the surrogate’s legal rights are removed and that they, as the child’s intended parents, are granted the appropriate rights. The surrogate will have to continue to be involved in the process, and consent to the Parental Order, even after they have given birth. It is essential that intended parents and surrogates are aware of the legal process so that they know what is expected of them from the outset.
It is also essential that the intended parents are aware of the legal fees which will be involved in obtaining the proper legal rights once their child is born, before starting the process.
KJ Smith Solicitors
KJ Smith Solicitors offer expert legal advice on the law around surrogacy and are able to assist with all stages of the parental order process. They offer a free 45-minute initial consultation so that you can be provided with detailed advice from the very start of your journey, whether as an intended parent or a surrogate.
To book in your free initial consultaon (remote sessions available), contact KJ Smith Solicitors on:
Telephone: 01256 584 000
Email: basingstoke@kjsmith.co.uk
Article written 7 September 2025.
