Surrogacy law in England and Wales still has its roots in the 1980s, and it shows. The core rule hasn't changed in decades: the surrogate and her partner are the legal parents of the child from birth, and that stays true until a parental order transfers parenthood to the intended parents, a process that can take up to a year.
The case that sums it up
In Re D and L (Minors)(Surrogacy) [2012] EWHC 2631 (Fam), Mr Justice Baker put it plainly: "A surrogate mother is not merely a cipher. She plays the most important role in bringing the child into the world." It's a fair point, and one that gets lost in a lot of the debate. But it also captures exactly why the law is so tangled: it has to hold two things at once, respecting the surrogate's role and protecting the intended parents and child from months of legal limbo.
Where the law actually struggles
Under section 54(8) of the Human Fertilisation and Embryology Act 2008, a parental order can only be granted if no money beyond "reasonably incurred" expenses has changed hands. Nobody has ever properly defined what "reasonably incurred" means, so courts end up interpreting it case by case, often stretching it to reach the outcome that's actually best for the child. That's a court quietly working around a badly worded law, not applying a clear one.
On top of that, the surrogate can't give legally valid consent to the parental order until six weeks after the birth, so there's a real window, even once intended parents have applied to the court, where she's entitled to change her mind. And because commercial surrogacy is banned in the UK, more people are going abroad for surrogacy arrangements, arrangements the UK courts then have far less ability to oversee or protect anyone in.
What the Law Commission proposed, and where it falls short
In 2023, the Law Commission put forward a "new pathway": intended parents would become legal parents from birth (provided the surrogate consents), and a surrogacy register would let children access their origins later in life. Both are genuine improvements. But commercial surrogacy stays banned under the proposals, which I think misses the point. It doesn't stop people from doing it, it just pushes it overseas, where UK courts have even less ability to protect anyone involved.
I'd also add: the consultation behind these proposals leaned heavily on a single 2014 opinion poll and didn't meaningfully include surrogates whose first language isn't English, a real gap given they're the group the law is supposed to protect most.
More than two years on, nothing has actually changed. The government's first response, in November 2023, said parliamentary time didn't allow for it "at the moment." In April 2025, a second letter said essentially the same thing: the recommendations aren't being taken forward "at this time." Two years of "not now" is starting to look a lot like "not a priority."
Why this matters to me
I hope that by the time I qualify as a solicitor specialising in family law, I'll get to see some of this reform actually happen, not just proposed. Surrogacy law affects real families waiting months for legal certainty over their own children, and the law hasn't kept pace with how people actually build families today.
This reflects the law and reform proposals as I've researched them, most recently checked in August 2026. Surrogacy law reform is an ongoing, live political issue, so if you're relying on any of this, check the current position rather than taking this post as up to date.
Not legal advice. For your own situation, speak to a qualified solicitor.