Risky routes to parenthood as UK surrogacy reforms stall

Its dark portrayal of coercive surrogacy arrangements on unsuspecting young Nigerian women may be fictional, but the risks it highlights are far from fantasy for real-life couples pursuing parenthood through overseas surrogacy.

Once the preserve of international celebrities like reality star Kim Kardashian, footballer Cristiano Ronaldo and Emily in Paris actress Lily Collins, surrogacy has become a growing route to parenthood for many in the UK.  And while this is now a far more common path for couples facing fertility issues, same-sex partners, and solo parents, legal protections have not kept pace, especially when the surrogacy arrangement takes place overseas.

And with long-awaited government reforms to UK surrogacy law now firmly on the back burner, experts are warning of the risks for would-be parents pursuing overseas arrangements and urging early advice to avoid heartbreak and legal confusion.

Commercial surrogacy remains banned in the UK and British law recognises the birth mother as the child’s legal parent, making the legal situation fraught with difficulty, especially in international cases.

Even if the intended parents are biologically related to the child, they must apply to the family court for a parental order after birth, transferring legal parenthood from the surrogate. The process can be complex and in overseas cases risks around citizenship, immigration status, and differing legal interpretations can significantly complicate matters.

The Department of Health warns prospective parents about the risks of international surrogacy – including legal, ethical and health complications – but prospective parents are flying in the face of the guidance, which has no binding force. As a result, family courts are seeing rising numbers of such cases, and legal commentators suggest that growing backlogs could make outcomes even slower and more uncertain.

The number of British couples making overseas surrogacy-related parental order applications doubled from around 150 to more than 300 per year between 2018 and 2024.  The highest numbers involved surrogates in the USA with other countries regularly featuring including Ukraine, Georgia, and nations across Africa and South America.

The current legal framework prohibits lawyers from advising on or assisting with the creation of surrogacy agreements as they are not legally enforceable in the UK, but solicitors can offer legal advice regarding the application for a parental order, which is necessary to transfer legal parenthood.  The Law Commission of England and Wales completed a three-year review in 2023 and published a draft bill proposing wide-ranging reform, including a new pathway that would allow intended parents to become legal parents at birth. But ministers recently confirmed the bill would not progress in the current parliamentary session.

Campaigners and judges alike are warning of the dangers in not tackling this legislative update.  A recent High Court case saw two British women in their 60s criticised for arranging commercial surrogacy using donor embryos, raising concerns about exploitation and child welfare. While the parental order was granted, the judge expressed concerns that the two Ukrainian women used as surrogates were “being exploited for commercial gain”.

Sir Andrew McFarlane, President of the Family Division, condemned the “self-centred” approach in this and similar cases, saying it risked reducing surrogates to a commercial commodity and children to a “product”.

In another recent High Court case, the intended parents separated before applying for a parental order, leading the judge, Mrs Justice Theis, to criticise the couple for taking “risks to pursue their own wish to have a child rather than confront the harsh reality of what they were doing and the consequences”.

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