Surrogacy and Parental Orders – A Guide for the Modern Family

Surrogacy is becoming more common, providing the opportunity to those who have trouble conceiving and / or carrying a child to term, or in same sex relationships. Going forward it may also provide the opportunity for those not in a relationship to have a child – see the case of Re Z below.

The law around surrogacy and Parental Orders is governed by the Human Fertilisation and Embryology Act 2008.

There are two different types of surrogate:

• Gestational Surrogate – Where the embryo is created using IVF and the eggs and sperm of the intended parents. The embryo is implanted into the womb of the surrogate (meaning the surrogate will have no biological link to the child).
• Traditional Surrogate – Where the sperm of the intended Father or donor is used to fertilise the egg of the surrogate (meaning there is a genetic or biological link between the surrogate and the child).

Who is the ‘legal parent’ in surrogacy?

Irrespective of the method of surrogacy used, the surrogate will be the ‘legal parent’ of the child and hold Parental Responsibility, even if surrogacy was via gestational surrogacy. It is important to note the surrogate’s partner will also be considered the child’s ‘legal parent’ if they are married or in a civil partnership.

Legal Parentage is different to Parental Responsibility; Legal Parentage relates to financial rights and responsibilities over a child, whereas Parental Responsibility refers to the parent’s general day to day duties and responsibilities.

Once a Parental Order is made this ends the ‘legal parent’ status of the birth mother and their partner. The recipients become the legal parents, and are recognised as the parents of the child. This gives them rights above and beyond Parental Responsibility, and formally recognises the child’s life story and family identity.

How do you make a Parental Order?

The criteria and requirements for making a Parental Order are covered in Section 54 of the Human Fertilisation and Embryology Act 2008. This includes the following requirements;

• Any application must be made within six months of birth;
• There is no longer a requirement for there to be two applicants, and following a change in law in 2019 following the case of  Re: Z (No. 2) in 2016, single Applicants can now apply;
• At the time of the application the child’s home must be with the Applicants;
• Either or both of the Applicants must be domiciled in the United Kingdom, Channel Islands or Isle of Man;
• The Applicants must be over 18 years of age; and
• No money can be given for the surrogacy arrangement, apart from ‘reasonable incurred’ expenses. (The Human Fertilisation and Embryology Act 1985 makes it illegal to enter into a surrogacy arrangement for commercial / financial gain.)

Parental Order court case studies

There is a requirement that any application must be issued within six months of the child’s birth. However, in the case of Re X (A Child) (Surrogacy: Time limit) [2014] EWHC 3135 (Fam), Sir James Munby the former President of the Family Division considered the intentions of Parliament in setting the six month time limit and granted an application made outside of this timeframe. This was considered to be in the best interests of the child, on the basis that Parliament would not intend that a party would be barred forever in applying for a Parental Order (which could be to the detriment of the child), based on time restraints.

Although this was the decision in this case it is best not to take the chance and any application should be made within the six-month statutory timeframe.

The requirement for there to be two Applicants also came under review with the case of Re Z (no.2) [2016] EWHC 1191 (Fam) resulted in a Declaration of Incompatibility being made where a sole father was applying for a Parental Order.

It was decided that the requirement for there to be two applicants was a breach of Article 14 of the Human Rights Act, being the right to be protected from discrimination and in 2019 the law was changed so as to allow applications by a single person.

The court have expressed, through case law, the importance of a Parental Order in providing the child with an identity and recognising their family make-up. When deciding whether to make a Parental Order, the court must always prioritise the best interests of the child. A Parental Order will recognise the child’s parents and family for life.

Law Commission surrogacy law consultation

The Government undertook a consultation to advise on the need for reform around the laws and processes of surrogacy. The report, which was filed on 29th March 2023, included a number of proposed reforms, such as the creation of a surrogacy register. This was a suggested new process, where the intended parents would be recognised as such from birth, as opposed to the date the Parental Order is made. Another proposal was the ability to make a Parental Order in certain circumstances, even when the surrogate does not consent.

Following the filing of the report and draft legislation the Department of Health and Social Care filed a response on 10th April 2025. This advised that the Government was ‘unable to prioritise surrogacy reform currently’, and so it appears that any changes to the current law and processes around surrogacy are not likely to happen in the near future.

What should you do if considering entering into a surrogacy arrangement?

The law on surrogacy and Parental Orders is a relatively new and evolving area of law. If you are thinking of entering into a surrogacy arrangement, either as the surrogate or as the potential parent, it is important you seek legal advice to ensure you know your rights.

There are many pitfalls and possible negative consequences if the right procedure isn’t followed. There are also many examples where the relationship between the surrogate and prospective parents, or even between the parents themselves has broken down during the surrogacy process.

Seeking appropriate advice at the earliest stage, and before you enter into any arrangement will ensure appropriate safeguards are put in place for all parties.

If you need advice from a legal expert, our lawyers are on hand to support you.  To arrange an appointment, contact us today on either 02380 221344 or 01202 31500. Alternatively, you can email us at [email protected].