Legal Advice on Surrogacy Law

Building a family through surrogacy is a positive and carefully planned process, involving a complex legal framework that requires early and informed advice. UK surrogacy law differs markedly from that of many other countries, particularly around legal parenthood, payments, and that surrogacy in the UK is an altruistic journey rather than a commercial agreement. It is really important that you understand the steps needed after a child is born (whether in the UK or outside of the UK) to secure your legal status as parents in the UK.

JMW’s specialist surrogacy lawyers advise individuals and couples at every stage of the surrogacy journey from initial advice to securing parental orders through the court, including liaising with international counterparts to obtain the relevant documentation to secure legal parenthood in the UK. Our role is to help you understand how the law applies to your circumstances, anticipate potential issues, and ultimately secure your position as legal parents.

Whether you are at an early planning stage or already partway through a surrogacy journey, our family law team provides clear, discreet and practical legal advice to support you and your family. Speak to a member of our team by calling 0345 872 6666, or by completing our online enquiry form.

How JMW Can Help

Surrogacy law in England and Wales is highly regulated and often misunderstood. JMW’s surrogacy lawyers provide specialist legal advice at every stage of the process, helping intended parents and surrogates understand their legal position and make informed decisions with confidence.

We advise on both UK surrogacy journeys and international surrogacy, including the legal implications of different types of surrogacy, the laws around payments to a surrogate, and how legal parenthood is assigned at birth. Early advice is particularly valuable, as decisions made before conception can have lasting consequences for parental responsibility, immigration status, and a child’s long-term legal security. It is essential that clients understand the legal criteria to ultimately be able to secure legal parenthood.

Our family law team supports clients with:

• explaining how UK surrogacy law applies in practice and providing initial advice to both intended parents and surrogates, as well as confirming the position to fertility clinics and relevant agencies prior to the transfer of embryos;
• guiding intended parents through the legal process of obtaining a parental order;
• managing international surrogacy arrangements and coordinating advice with overseas and immigration lawyers where required; and
• resolving disputes or unexpected complications sensitively and with the child’s welfare at the forefront.

Many of our clients have complex personal or financial circumstances, including international connections, existing families, or business interests. We take a considered and strategic approach, helping you plan ahead and reduce uncertainty wherever possible. Throughout, our focus remains on safeguarding your child’s legal status and supporting the creation of a secure and enduring family relationship.

Our surrogacy solicitors form part of JMW’s highly regarded family law team, which is recognised in the Legal 500, Chambers & Partners and The Spear’s 500 for its expertise in complex and sensitive family law matters. Clients value our depth of experience, calm judgement and ability to manage cases that involve international elements, significant assets or heightened emotional pressures. As a full-service law firm, we can also draw on specialist colleagues in immigration, employment and private client law where needed, allowing us to provide joined-up advice and a level of support that reflects the seriousness and long-term implications of surrogacy arrangements.

Meet the Team

Our specialist family law team provides experienced, discreet guidance on surrogacy law, offering clear advice and steady support throughout every stage of the surrogacy journey.

Case Studies

What Is Surrogacy?

Surrogacy is a way of building a family in which a woman (the surrogate) carries and gives birth to a child for another person or couple, known as the intended parents. It is an established option under UK surrogacy law and is used by a wide range of families, including opposite-sex and same-sex couples, civil partners and individuals who are unable to carry a pregnancy themselves.

There are two recognised forms of surrogacy under English law:

• Traditional (or straight) surrogacy: the surrogate uses her own egg, meaning she is genetically related to the child.
• Gestational (or host) surrogacy: the surrogate has no genetic connection to the child, as an embryo created using the egg of the intended mother or a donor egg is transferred through IVF.

Both forms of surrogacy are lawful in England and Wales, subject to strict legal requirements. UK law prohibits commercial surrogacy, meaning it is unlawful to pay a surrogate beyond reasonable expenses or to advertise surrogacy services for profit. These restrictions shape how surrogacy arrangements are set up and mean that legal advice is often needed at an early stage to avoid difficulties later. 

While surrogacy can be a positive and rewarding route to parenthood, it carries specific implications for legal parenthood, parental responsibility and the child’s legal status at birth. Understanding how surrogacy law operates from the outset allows intended parents and surrogates to proceed with clarity and confidence, and protects the long-term interests of everyone involved, particularly the child. It is essential that intended parents understand the legal requirements to obtain a parental order to secure legal parenthood once the baby is born.

What Is a Surrogacy Agreement?

A surrogacy agreement is a written document that sets out how the surrogacy arrangement is intended to work and the expectations of everyone involved. While there is no legal requirement to have a surrogacy agreement in England and Wales, it is generally advisable to do so, particularly where the arrangement involves complex personal, financial or international considerations.

Under UK surrogacy law, a surrogacy agreement is not legally binding. This means that it cannot be used to transfer legal parenthood or to compel a surrogate to hand over the child after birth. Only the court can make decisions about legal parenthood, usually through a parental order or, in some circumstances, an adoption order. However, a carefully prepared agreement can still play a valuable role if questions or disputes arise.

A surrogacy agreement typically records matters such as:

• The intentions of the surrogate and the intended parents regarding parenthood and care of the child.
• How pregnancy-related expenses will be handled, within the limits of UK law on reasonable expenses.
• Practical arrangements around pregnancy, birth and early care.
• Expectations around contact and communication, both during the pregnancy and after birth.

Although the court is not bound by the terms of a surrogacy agreement, it may take the document into account as evidence of the parties’ intentions if it becomes involved in resolving a dispute. Preparing an agreement also encourages open discussion at an early stage, by helping to identify and address potential areas of misunderstanding before the surrogacy journey progresses.

Because of the restrictions on commercial surrogacy, solicitors in England and Wales are not permitted to draft surrogacy agreements themselves.

Who Is the Legal Parent Under a Surrogacy Arrangement?

Under UK surrogacy law, legal parenthood at birth follows strict statutory rules. This can come as a surprise to many intended parents, as the child’s legal status will not reflect the intentions of the parties or the terms of any surrogacy agreement.

At birth, the surrogate is always the child’s legal mother, regardless of whether she is genetically related to the child. This legal status cannot be altered by agreement or by any pre-birth court process. The surrogate remains the legal mother until legal parenthood is formally transferred by the court. This is usually via a parental order.

Whether there is a second legal parent at birth depends on several factors, including:

• Whether the surrogate is married or in a civil partnership at the time of conception.
• Whether her spouse or civil partner has consented to the surrogacy arrangement.
• The method of conception used.
• Whether the intended father is genetically related to the child.

If the surrogate is married or in a civil partnership, her spouse or civil partner is usually treated as the second legal parent at birth, unless they can show they did not consent. If she is not married or in a civil partnership, the identity of the second legal parent will depend on how conception took place and what consents were given.

A child can have no more than two legal parents at any one time. The legal parent or parents at birth are named on the child’s initial birth certificate. This certificate is later replaced once a parental order is granted, at which point the intended parent or parents become the child’s legal parents for all purposes.

Because legal parenthood carries lifelong consequences - including parental responsibility, inheritance rights and nationality - it is essential for intended parents and surrogates to understand their legal position from the outset. Early legal advice on surrogacy law allows arrangements to be structured in a way that supports a smooth application for a parental order and avoids complications during what can already be an emotionally demanding period.

Learn more about how the legal rights around parental responsibility work by visiting our legal parenthood page.

How to Obtain a Legal Parental Order

In England and Wales, a parental order is the primary legal mechanism for transferring legal parenthood from the surrogate (and, where applicable, her spouse or civil partner) to the intended parent or parents. Until a parental order is made, the surrogate remains the child’s legal mother, even if the child is living with and being cared for by the intended parents.

Parental orders are governed by the Human Fertilisation and Embryology Act 2008 and are available in both domestic and international surrogacy arrangements, provided the statutory criteria are met. The application is made to the family court after the child’s birth.

To qualify for a parental order, the following requirements must be satisfied:

• The child must have been conceived through assisted reproduction, such as IVF or artificial insemination, rather than sexual intercourse.
• The intended parent or parents must be at least 18 years old.
• At least one intended parent must be genetically related to the child. In the case of a single applicant, that person must have the genetic link.
• Where there are two applicants, they must be married, in a civil partnership, or living together in an enduring family relationship.
• The child must be living with the intended parent or parents both at the time of the application and when the order is made.
• The application should usually be made within six months of the child’s birth, although the court has discretion to extend this time limit if the child’s welfare requires it.
• The surrogate (and, if applicable, her spouse or civil partner) must give full, informed consent, which cannot be provided until at least six weeks after the birth.
• Any payments made to the surrogate must not exceed reasonable expenses, unless the court authorises them retrospectively.
• At least one applicant must be domiciled in the UK, Channel Islands or Isle of Man.

The court’s overriding consideration is the child’s welfare. Where the criteria are met and the arrangement has been entered into openly and in good faith, the court will usually conclude that transferring legal parenthood to the intended parents is in the child’s best interests.

The process involves submitting a formal application, preparing detailed evidence about the surrogacy arrangement and family circumstances, and working with a CAFCASS parental order reporter, who will prepare a report for the court. With careful preparation and clear legal guidance, the process is generally straightforward, but early advice can help avoid parental order delays or difficulties, particularly in complex or international cases.

What Are the Rules for International Surrogacy?

International surrogacy can offer additional options for intended parents, but it also introduces a higher level of legal complexity. Surrogacy laws vary widely between countries, and arrangements that are lawful - or even routine - overseas may not align with UK surrogacy law. For this reason, international surrogacy requires particularly careful planning and early legal advice.

Under English law, UK courts will always apply domestic legal principles when determining legal parenthood, regardless of what the law of the foreign country provides. This means that even if you are named as a legal parent on a foreign birth certificate, or a pre-birth order has been granted abroad, you will still need to apply for a parental order in England and Wales to be recognised as your child’s legal parent here.

Key issues that commonly arise in international surrogacy arrangements include:

• Legal parenthood conflicts: some countries assign legal parenthood to intended parents from birth, while others recognise the surrogate. This can result in periods where a child has no recognised legal parent under UK law, or more than two parents internationally.
• Immigration and nationality: difficulties can arise when bringing a child back to the UK, particularly where British nationality is not automatic or documentation is delayed.
• Commercial surrogacy: many overseas jurisdictions permit commercial surrogacy. Payments made abroad will be closely scrutinised by the English court when considering a parental order and must be authorised retrospectively.
• Local law compliance: some countries restrict or prohibit surrogacy for foreign nationals, same-sex couples, or single intended parents, and laws can change with little notice.

Even where an international arrangement appears straightforward, the interaction between foreign law and English law can create unexpected risks. Intended parents should always obtain legal advice in both jurisdictions before treatment begins, including specialist advice on immigration and nationality. International arrangements are dealt with in a higher court than a UK surrogacy journey.

Q

What is a pre-birth order?

A

In some countries, a pre-birth order can be obtained before the child is born, transferring legal parenthood to the intended parents from the moment of birth. These orders are often used in international surrogacy arrangements to provide clarity and continuity of care.

However, pre-birth orders are not recognised under English law. In England and Wales, legal parenthood cannot be transferred until after the child is born, and only the court can do this through a parental order or, in limited circumstances, adoption. Even where a valid pre-birth order exists overseas and the intended parents are named on a foreign birth certificate, a parental order must still be obtained in the UK for legal parenthood to be recognised here.

As a result, there is often a period between birth and the making of a parental order where the surrogate retains legal parenthood and parental responsibility. Understanding and planning for this gap is an important part of any surrogacy arrangement.

Q

What practical considerations should be made when arranging a surrogacy agreement?

A

Surrogacy involves more than the legal transfer of parenthood, and there are a number of practical issues that should be addressed alongside the legal process. These include:

• Medical decision-making: during the period before a parental order is made, the surrogate’s consent may be required for certain medical treatments.
• Employment and parental leave: intended parents are entitled to statutory parental leave, but employers may not be familiar with surrogacy arrangements.
• Wills and estate planning: both intended parents and, where appropriate, surrogates should consider updating or preparing wills to protect the child in the event of unforeseen circumstances.
• Immigration and travel: international arrangements require careful planning to avoid delays or complications in bringing the child to the UK.
• Day-to-day care arrangements: clarity around roles immediately after birth can reduce uncertainty during the legal transition period.

Addressing these matters early minimises stress and supports a smoother transition for everyone involved, particularly the child.

Q

How should disputes between surrogates and intended parents be resolved?

A

Disputes in surrogacy arrangements are rare, but they can arise. Occasionally, a surrogate may decide she does not wish to hand the child over, or intended parents may withdraw from the arrangement. Until legal parenthood is transferred, the court has the authority to decide where the child should live and who should make decisions about their upbringing.

In the event of a dispute, the court will apply the Children Act 1989, with the child’s welfare as the paramount consideration. Any surrogacy agreement will be taken into account as evidence of the parties’ intentions, but it will never be decisive.

Once a parental order has been made, the surrogate has no automatic right to remain involved in the child’s life and cannot make applications to the court without permission. With that said, many intended parents choose to maintain positive, voluntary relationships with surrogates, reflecting the unique nature of these arrangements.

Q

What alternative orders can be applied for in surrogacy cases?

A

If a parental order cannot be granted - for example, because the statutory criteria are not met - the court may need to consider alternative legal arrangements. These can include:

• Adoption orders, which fully transfer legal parenthood where a parental order is not available.
• Special guardianship orders that provide enhanced parental responsibility while preserving some legal links.
• Child arrangements orders to regulate where the child lives and confer parental responsibility.
• Wardship or specific issue orders, which allow the court to retain oversight of key decisions affecting the child.

Each option has different legal consequences, and the appropriate route will depend on the individual circumstances of the family and the child’s best interests.

Q

When should I seek legal advice on surrogacy?

A

Legal advice should ideally be obtained before entering into a surrogacy arrangement, whether in the UK or abroad. Early guidance allows potential issues around legal parenthood, payments, consent and international recognition to be addressed proactively, rather than retrospectively through complex court proceedings.

Surrogacy law is technical and highly fact-specific. Taking advice at the outset will protect your position, manage expectations and provide reassurance throughout what can be an emotionally significant journey.