Three years after the Law Commission proposed a major overhaul of surrogacy law, reform remains firmly on hold.
Earlier this month, MPs debated whether intended parents in surrogacy arrangements should be recognised as their child's legal parents from birth. The debate followed a petition signed by more than 113,000 people calling for change to the current system.
While there was widespread acknowledgement that the law can create difficulties for families, the government's message was clear: surrogacy reform is not currently a legislative priority. Although ministers said they will continue to consider options for future reform, there is no indication that changes are imminent.
Why are people calling for change?
Under the current law in England and Wales, the woman who gives birth to a child is the child's legal mother at birth, even if she has no genetic connection to the child and never intended to parent them. For intended parents, legal parenthood is usually secured through a parental order. This is a court process that takes place after the child is born and involves safeguarding checks and input from CAFCASS before the court can make an order.
For many families, that can feel difficult to reconcile with the reality of everyday life. The intended parents may be caring for the baby from the moment they are born, making day-to-day decisions and taking on all the responsibilities of parenthood, yet they are not recognised as the child's legal parents until the parental order process is complete.
Supporters of reform argue that the law has not kept pace with modern family creation and that children should not spend their first months in what is sometimes described as a period of legal uncertainty.
What did the Law Commission propose?
The Parliamentary debate repeatedly returned to the recommendations made by the Law Commission of England and Wales and the Scottish Law Commission in their 2023 joint report.
The headline proposal was the creation of a new regulated pathway for eligible UK surrogacy arrangements. Under that model, intended parents could become the child's legal parents from birth, provided a number of requirements had been met before conception. Those requirements would include screening, counselling, independent legal advice and oversight by regulated surrogacy organisations. The proposals would also preserve important safeguards for surrogates, including the ability to withdraw from the arrangement in specified circumstances.
In other words, the Law Commission was not proposing the removal of safeguards. Instead, it sought to move much of the scrutiny and assessment to an earlier stage of the process.
Why is reform taking time?
Despite broad agreement that the current system can be difficult for families, there is much less agreement about how the law should change. During the debate, a number of MPs expressed concern that recognising intended parents as legal parents from birth could weaken protections for surrogates and children. Others highlighted concerns about the growing international surrogacy market and the potential risks of commercialisation and exploitation. Some MPs also questioned whether the answer lies in changing the legal framework altogether, or whether improvements could instead be made to the existing parental order process to make it quicker and more straightforward. These are not new concerns, but the debate demonstrated just how divided opinion remains.
So where does this leave families?
For now, the legal position remains unchanged. Anyone embarking on a surrogacy journey must continue to navigate a framework that is largely built around legislation introduced decades ago. Intended parents will still need to obtain a parental order to secure their legal parentage, and the Law Commission's proposed new pathway remains just that: a proposal.
The recent Parliamentary debate showed that there is growing recognition that the law is struggling to keep pace with the realities of modern surrogacy arrangements. However, it also highlighted the difficult balancing exercise at the heart of any reform. In this case, protecting the interests of children, intended parents and surrogates, while ensuring appropriate safeguards remain in place.
Whatever view is taken on the Law Commission's recommendations, one thing seems clear. The debate about surrogacy reform is far from over. Families may, however, have to wait a little longer before that debate translates into legislative change.
Every surrogacy journey is different. If you are considering a surrogacy arrangement, or have questions about the legal process, seeking specialist advice at an early stage can help you understand your options and avoid unexpected complications later on. To find out more about surrogacy, parental orders and other fertility law issues, please get in touch with our head of fertility law Rose-Marie Drury.
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