Vardags Family Law Essay competition 2024/25 | Millie Doran

‘Born into Limbo: Is the UK’s Surrogacy Law Failing the Most Vulnerable?’

Author: Millie Doran - University of York

Introduction

Surrogacy, an ancient practice first documented in the Old Testament between Abraham, Sarah, and Hagar (1), has evolved with modern reproductive technologies and the changing definition of family. As humans, we have “a deep desire to propagate…[it] is part of who we, as people, are” (2) which is why surrogacy has become an increasingly sought-after path to parenthood, particularly as 1 in 6 people face infertility (3).

In the UK, it is estimated that over 500 children are born via surrogacy each year (4) . Despite this growing prevalence, the UK’s legal framework remains rigid, outdated and unfit for purpose, unable to adapt to the complexities of modern family building. Currently, children born via surrogacy are born into limbo, lacking immediate recognition of their intended parents and facing uncertainties regarding their legal rights and protections. Without meaningful change, they will remain vulnerable to instability and lengthy legal battles. While the Law Commission’s proposal for an updated surrogacy framework aims to address some concerns, it risks being a mere illusion of substantive change, leaving deep-rooted systemic issues unaddressed.

The Existing Legal Framework

Surrogacy laws in the UK, as it stands are built on fragile foundations, governed by the Surrogacy Arrangements Act (SAA) 1985 (5) and the Human Fertilisation and Embryology Act (HFEA) 2008 (6). Both are relics of a time whereby surrogacy was met with deep suspicion, often being framed as a commercialised practice fraught with ethical dilemmas. Currently, the legal process requires intended parents to apply for a parental order after the child is born, meanwhile, the surrogate remains the legal mother. This is a precious approach which fails to reflect the realities of modern surrogacy agreements, and leaves children in a state of limbo, caught in a system that could collapse under pressure.

The Law Commission seeks to reinforce this unstable structure by introducing new ‘pathways to parenthood’ in their proposed reforms. Subject to regulatory safeguards, under these reforms legal parenthood would transfer to the intended parents at birth.

At first glance, this appears as a step forward in aligning the law with modern family structures, however, a deeper look reveals the failure to address a plethora of structural issues; particularly the shortage of surrogates, the lack of state support, as well as, ethical issues and power imbalances.

The Impact of the UK’s Altruistic Surrogacy Model: Shortages, Inequality, and the Push for Reform

As a result of the rigid altruistic model imposed by UK law, there is a shortage of surrogate mothers in the surrogacy system. Current legislation permits surrogacy arrangements to be altruistic, under section 54(8) of the HFEA 2008 (7) no payment other than ‘expenses reasonably incurred’ is permitted. Brown argues that the Law Commission’s reforms do not introduce enforceability mechanisms to ensure compliance, meaning that the courts are still relied upon to determine whether payments made to a surrogate exceed what is deemed ‘reasonable’, this reliance on judicial discretion undermines the clarity and legal certainty that the reforms claim to provide (8). Therefore, although designed to prevent commercialisation and risk of exploitation, this altruistic approach has significantly reduced the number of willing surrogates, making domestic surrogacy an unattainable option for many.

The consequences of this shortage are stark. Desperate to start families, many intended parents seeking a better experience (9), look abroad to countries where commercial surrogacy is permitted. However, this comes with its own set of hurdles, including complex immigration laws, costly legal fees, and challenges when trying to bring the child back to the UK. As a result, surrogacy has become a private largely reserved for the wealthy. A two-tier system has emerged, perpetuating the inequality within reproductive healthcare, only the wealthy can access surrogacy due to the insurmountable financial barriers posed by legal fees, medical expenses, travel costs, and payments to the surrogate.

Additionally, by limiting the financial compensation available to surrogate mothers, the law fails to acknowledge the significant physical, emotional and psychological burden placed on surrogates. Pregnancy entails medical risks and long-term physical changes, yet the current legal framework reinforces the ideal that surrogacy is a self-sacrificial act rather than a recognised and supported reproductive choice. Without reform, the rigid approach in the UK will continue to deter potential surrogates, deepen socioeconomic inequalities in reproduction, and push intended parents to international arrangements.

The altruistic surrogacy model, while well-intentioned, has led to shortages of surrogates, inequities in access, and a distorted, two-tiered system that fails to support both surrogates and intended parents, ultimately jeopardising the welfare of children.

International Surrogacy and the Legal Grey Area

The UK’s restrictive surrogacy laws have not only contributed to a shortage of domestic surrogates but also have forced many intended parents to seek surrogacy arrangements abroad which the law has failed to keep pace with.

Currently, intended parents must apply for a parental order after the child is born, but this process becomes significantly more challenging and complex when the child is born outside of the UK. Immigration laws, nationality rules and inconsistent legal recognition between jurisdictions have created a tangled web of uncertainty, leaving children born via these arrangements in ‘legal limbo’.

The Law Commission’s proposed reforms still leave the topic of international surrogacy largely unaddressed. A streamlined legal process for cross-border surrogacy arrangements would have been ideal, however, the proposed pathway reforms only apply to domestic cases. This highlights a failure of the government to engage with the reality that a significant proportion of UK-based intended parents turn to foreign jurisdictions where commercial surrogacy is legal and better regulated.

A Nuffield Council on Bioethics report estimates that abroad approximately half of UK intended parents seeking surrogacy choose to do so abroad (10). Therefore, it can be seen that the absence of a clear legal pathways for international cases, not only leaves these children born via international surrogacy arrangements at risk of statelessness, and prolonged judicial battles but also highlights the law’s failure to provide the protection and stability of the children and families it is mean to protect.

The failure of UK law to address international surrogacy leaves children in legal limbo and exposes them to statelessness and uncertainty, further emphasizing the need for a comprehensive reform that includes cross-border surrogacy arrangements.

The Need for a Child-Centred Approach

While much of the legal debate surrounding surrogacy focuses on the rights of intended parents and surrogates, the rights and welfare of the child often remain secondary considerations. This is particularly evident in cases of international surrogacy, where the absence of clear legal pathways leaves children in a precarious situation, and underscores the need for a child-centred approach that prioritises the stability, security, and rights of the child above all else.

A paramount principle in family law is that of the ‘best interest of the child’. The UN Convention on the Rights of the Child (UNCRC), a fundamental international human rights principle, stresses the importance of providing every child with legal recognition, nationality, and protection from discrimination. Article 3 explicitly says that “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration” (11). However, the UK’s surrogacy laws do not sufficiently uphold these principles, as they disproportionately emphasise the intentions and agreements between adults (12), thus, resulting in children being left in legal uncertainty due to bureaucratic complications.

A shift toward a child-centred approach in surrogacy law is essential to ensuring that the rights and welfare of children are prioritized, guaranteeing legal recognition, stability, and protection for those born through surrogacy arrangements.

Conclusion

It is clear that the current state of surrogacy law in the UK is disconnected from the evolving nature of family structures and reproductive practices, remaining rigid and outdated in its approach. Built upon a foundation that fails to prioritize the child’s best interests, the law continues to focus on the intentions and agreements of adults rather than the welfare of the children involved.

While the Law Commission’s proposed reforms may appear as a step forward, they fall short of addressing the deeper structural issues within the system. The altruistic model, while designed to prevent exploitation, lacks the necessary legal mechanisms to protect the interests of surrogates, paradoxically leading to a shortage of willing surrogates. This shortage, in turn, exacerbates inequalities, with wealthier intended parents often turning to international surrogacy as a solution, creating a two-tier system that further marginalizes those without the financial means to access surrogacy services.

Ultimately, without meaningful reform that centres on the rights and welfare of the child, UK surrogacy law will continue to fall short of its purpose. It is crucial that any future legislative changes move beyond the constraints of outdated frameworks, ensuring that children born via surrogacy are granted the same legal protections, recognition, and security as any other child. Only by doing so can we create a system that truly reflects the best interests of the child and upholds the dignity of all parties involved.

Bibliography

(1) English Standard Version Bible, Genesis Chapter 16, v 2-4.

(2) Shauna Gardino and Linda Emanuel, ‘Choosing Life When Facing Death’ (2010) 156 Oncofertility accessed 28 December 2024

(3) World Health Organisation, ‘1 in 6 people globally affected by infertility: WHO’ (WHO, 4 April 2023) accessed 14 January 2025

(4) Brilliant Beginnings, ‘Surrogacy Law Reform: Parliamentary Briefing Paper 2020’ (2020) Brilliant Beginnings accessed 12 January 2025

(5) Surrogacy Arrangements Act (SAA) 1985

(6) Human Fertilisation and Embryology Act (HFEA) 2008

(7) Human Fertilisation and Embryology Act (HFEA) 2008, s54(8)

(8) Brown A, ‘Surrogacy law reform in the UK: the ambiguous position of payments to the surrogate’ (2021) CLFQ 95

(9) Kirsty Horsey, The future of surrogacy: a review of current global trends and national landscapes (2024) Reproductive BioMedicine Online, vol.48(5)

(10) Nuffield Council on Bioethics (2023) Surrogacy law in the UK: Ethical considerations. accessed 28 January 2025

(11) UN Convention on the Rights of the Child (UNCRC), article 3.1

(12) Gheaus, Anca, ’Against Private Surrogacy: A Child-Centred View’, Debating Surrogacy (New York, 2023; online edn, Oxford Academic, 18 Jan. 2024), https://doi.org/10.1093/oso/9780190072162.003.0003, accessed 28 January 2025.