Our expertise in:

Family and children

Surrogacy and fertility law

Our surrogacy and fertility law experts provide specialist advice from surrogacy arrangements to posthumous use of embryos, and adoption to pre-conception agreements.

One of the biggest decisions you will make in your life is to have a child – or to help others create their own family. Scientific advances have fundamentally changed the way we think about how we form families.

Whether you are planning to use surrogacy, assisted reproduction, fertility treatment, donor conception, co-parenting or adoption, the legal processes and implications can be both daunting and complex. Specialist advice is essential in this rapidly evolving, technical area of law that frequently throws up novel situations. Without it, you may encounter problems bringing your baby born outside of the UK back into the country or you may find yourself not recognised as your child’s legal parent.

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Advice from the outset helps avoid problems and enables you, whether you are a parent, donor or a surrogate, to make informed decisions and achieve the best outcome. And if things do go wrong, legal advice and access to mediators, collaborative lawyers and arbitrators can help you resolve disputes time and cost effectively.

Our surrogacy lawyers

Our surrogacy and fertility lawyers help a wide variety of clients including individuals who have used assisted reproduction or fertility treatments, intended parents, surrogates, sperm and egg donors, co-parents, step-parents and fertility clinics. We aren’t afraid to push boundaries to find creative solutions to novel problems. A wealth of practical experience means whatever stage of the process you are at, you are in safe and supportive hands with our team.

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Recently we have:

Advised intended parents on an application for a parental order following an international surrogacy arrangement where there were issues relating to the intended parents’ domicile and expenses paid to the surrogate.
Advised a co-parent who was not in a relationship with the other co-parent but they planned to conceive a child together through fertility treatment.
Advised a parent in an application for a declaration of parentage following IVF treatment with her then same-sex partner where issues around consent forms for legal parentage arose and it was unclear whether the same-sex partner was a legal parent. The issues arose many years after the child’s birth and the case raised novel points which meant the Secretary of State for Health became involved in the proceedings.
Represented the surrogate mother in a case where the relationship between the intended parents had broken down during the pregnancy and the intended mother could not apply for a parental order, leaving the surrogate as a legal parent. This case has led to a change in the law allowing single applicants to apply for parental orders.
Acted for a leading fertility clinic in several reported cases involving declarations of parentage where donors had been used to conceive, including where the parents had separated and were not in agreement about the outcome.

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What do you need to know

Most parents do not need to think about whether they are their child’s legal parent, but for parents of children conceived through assisted reproduction (including donor conception, co-parenting and surrogacy), the law has some very specific rules about who is and is not a legal mother, father or parent. And it is getting legal parentage right that is often the most important priority.

Legal parentage is an important legal relationship for both a parent and a child. It has an impact on a wide range of legal issues such as nationality, inheritance, parental responsibility, child arrangements and financial responsibility for a child.

The law is complex and relies on strict criteria being met to ensure legal parentage is conferred. Sometimes even if you intend someone to be a legal parent the law does not recognise them as one and may recognise the legal parents as people you do not want to be legal parents such as donors or a surrogate.

However, there are a myriad of other issues to be aware of depending on your circumstances:

Relationships breaking down during fertility treatment or surrogacy
Donation of eggs and sperm
Anonymity of donors
The use of stored embryos after a divorce or separation
Posthumous conception

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Surrogacy FAQ's

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What are the different types of surrogacy?

There are two types of surrogacy: gestational (sometimes called host), and traditional (sometimes called genetic). A gestational surrogate doesn’t have a genetic relationship to the embryo she carries – the egg comes from either a third-party egg donor or from the intended mother. In traditional surrogacy, the surrogate’s own egg is used.
Is it illegal to pay a surrogate in the UK?

The law around payments in UK surrogacy is complex – but it has never been a criminal offence to pay a surrogate more than expenses, nor is it a criminal offence for a surrogate to receive more than reimbursement of reasonable expenses. There are some criminal laws dealing with payments but these only apply to third parties, including surrogacy organisations, who can’t make a profit from surrogacy.

If payments to a surrogate have been made that exceed reasonable expenses, the court must retrospectively authorise the payments when it comes to consider making a parental order. If the arrangement has simply reimbursed out of pocket expenses, the court doesn’t need to authorise any payments.
If surrogacy is legal in the UK, why do people go overseas?

Surrogacy has never been illegal in the UK and the statistics from the numbers of parental orders granted each year by the Family Court in England & Wales show that around half of parental orders made each year relate to domestic surrogacy arrangements. Surrogacy laws in the UK date back to the 1980s when little was known about surrogacy and Parliament didn’t want to encourage it to take place.

People who go overseas for surrogacy tend to do for several reasons including a shortage of women who are willing to become surrogates in the UK, and a perception of certainty in terms of parentage and enforceability of surrogacy arrangements.
Can the surrogate change her mind?

A common worry of prospective parents is the risk that the woman who carries the child will want to “keep the baby.” Under UK law, surrogacy agreements are not enforceable by either party. The reason for this was that Parliament didn’t want people seeking to enforce surrogacy arrangements under contract law.

At birth, the surrogate is the legal mother and the second legal parent will depend on her marital status. If she’s married, or in a civil partnership, then in most cases her spouse or civil partner will be the child’s second legal parent. A parental order can only be obtained if the surrogate and any other legal parent consents to the making of the parental order (unless you can persuade the court that they can’t be found or are incapable of giving agreement).

In practice there have only been a handful of cases where surrogates in the UK have tried to care for the child. If this situation were to arise, the intended parents could make an application to the Family Court for a child arrangements order, and for the child to live with them.
If we go overseas for surrogacy and are named on the birth certificate, do we need to do anything in the UK?

Yes. Most international surrogacy destinations will enable the intended parents to be named on the child’s birth certificate in the country where they are born, either automatically by operation of law, or after a court process in the country of birth.

However, no international laws deals with the recognition of legal parentage between countries, so the legal position in relation to parentage is likely to vary between the country of birth and the country where you intend to live (or intended citizenship which may or not be the same as where you intend to live).

In the UK, the surrogate will be recognised as the legal mother of the child and if she’s married or in a civil partnership, unless the spouse or civil partner did not consent to the pregnancy, they’ll be the second legal parent. This is the case regardless of what the legal parentage position is in the country of birth. A parental order will usually be required in England even if you are recognised as the parents in the country of birth.
What does a parental order do?

A parental order is a bespoke order for surrogacy arrangements. It extinguishes the legal parentage of the surrogate and any other legal parent and vests legal parentage in the intended parent or parents for all purposes under UK law. It creates a lifelong legal relationship that continues into adulthood.
Am I eligible for a parental order?
Parental orders are available to couples or single applicants. The criteria are:
- The child must have been born by surrogacy
- There must be a direct genetic link between at least one of the applicants
- If applying as a couple, the applicants must be married, in a civil partnership or living as partners in an enduring family relationship
- The application should be made within six months of the child being born (although the courts do allow applications made out of time)
- The child’s home must be with the applicants at the time of making the application and when the court is considering making a parental order
- At least one of the applicants must be domiciled in the UK, Channel Islands or Isle of Man
- The applicants must be aged over 18 years
- The surrogate and any other legal parent must unconditionally and with full understanding of what’s involved, agree to the making of a parental order. The consent of a surrogate can’t be valid until the baby is at least six weeks old
- The need for consent can only be dispensed with if she can’t be found or is incapable of giving agreement
- If payments that exceed reasonable expenses have been made, the court must authorise the payments before it can make a parental order.
This is an area of law where the courts have been creative in how they’ve applied the law to the facts of cases. Take advice in relation to your own circumstances.
Why is legal parentage so important?

Legal parentage can impact parental responsibility, inheritance and sometimes citizenship. In addition, it’s regarded as important to the children throughout their lives to have their legal relationship with their parents formally and legally recognised.
What if I’m not eligible for a parental order?

Not everyone who undertakes surrogacy is eligible for a parental order. In our experience, this usually arises where we can’t satisfy the domicile criteria or if there is no genetic link between the applicants and the child. Depending on your circumstances, alternative orders may be available including child arrangements orders or, potentially, adoption orders.
What is the role of Cafcass/the parental order reporter and what do they do?

When an application is made for a parental order, the court should automatically send the application to Cafcass (Children and Family Court Advisory and Support Service) to allocate a parental order reporter. The parental order reporter will usually be directed to prepare a report advising the court as to whether the criteria for a parental order is met and whether a parental order is in the child’s lifelong best interests. In domestic surrogacy arrangements, the parental order reporter will also witness the consent of the surrogate and any other legal parent (although they don’t do this for international surrogacy arrangements).

Cafcass should undertake “safeguarding checks” against the applicants and any other adults living in the household. This includes a police database search and enquiries with your local authority. The purpose of these checks is to make sure that there are no issues that might lead to child protection concerns. If you’re worried about any previous involvement with the police, social services or the Family Court, it’s important to take advice on these issues.
Is the UK law likely to change in relation to surrogacy?

The law in the UK relating to surrogacy is outdated and our surrogacy experts encourage law reform in this area. The Law Commission (of England and Wales) and the Scottish Law Commission published a joint report in March 2023 setting out their detailed proposals for law reform. It remains to be seen whether these proposals will be taken up and enacted into law, but substantive changes aren’t likely to be seen in the immediate future.

Vlogs from our fertility law and surrogacy solicitors

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In this vlog, Caitlin Jenkins, the family law vlogger, introduces her colleague, Mills & Reeve's Rose-Marie Drury, one of the specialist children law experts at Mills & Reeve. They discuss the sort of work Rose-Marie does in supporting families and their children and her passion for supporting the reform of the law relating to Surrogacy in England & Wales.

In this vlog, Caitlin Jenkins, the familylawvlogger talks to her Mills & Reeve specialist children law colleague, Rose-Marie Drury, about Surrogacy. What is it? What should you think about if you are thinking of entering in to a Surrogacy arrangement?

In this vlog, Caitlin Jenkins, the familylawvlogger talks to her Mills & Reeve specialist children law colleague, Rose-Marie Drury, about the concept of Legal Parentage and the implications of this for those who conceive a child using a donor or through surrogacy. To find out more or to contact Rose-Marie or one of her colleagues in the Mills & Reeve specialist children team please go to www.mills-reeve.com.

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