The regulation of surrogacy in the United Kingdom: the case for reform

Amel Alghrani, Danielle Griffiths

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Alghrani, A., & Griffiths, D. (2017). The regulation of surrogacy in the United Kingdom: the case for reform
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Child and Family Law Quarterly

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165

The regulation of surrogacy in the United

Kingdom: the case for reform
Amel Alghrani and Danielle Griffiths*

Keywords: Surrogacy – assisted reproduction – parental orders – human fertilisation and

embryology

This article considers the legal regulation of surrogacy in the United Kingdom and examines
legislative changes and case-law that have emerged over the past three decades. We illustrate
how the legal requirements to obtain parental orders (which give parenthood to the intended
parents after the birth and extinguish the parental status of the surrogate) are overly restrictive
and anachronistic. The legal requirements needed to obtain such orders have resulted in clear
anomalies and left children in a state of legal limbo. In practice some of the legal requirements
are often bypassed and this alone is a compelling argument for legal reform. Other require-
ments, such as parental orders only being available to couples, are discriminatory and violate
the individual’s right to respect for their private and family life. The regulation of surrogacy is
also incoherent and inconsistent when compared with other aspects of ‘becoming’ a parent via
other assisted reproductive technologies. This paper argues that the anomalies that judicial
decisions have generated in this domain have intensified the case for reform. We argue that the
time is opportune for a new statute governing this contentious area and make the following
three proposals for reform: (i) a pre-conception regulatory framework; (ii) permitting moderate
payment; (iii) widening access to parenthood and moving away from the two-parent model.

Introduction
Founding a family is regarded as a fundamental aspect of individual and social life. Perhaps
because of this, the right to marry and found a family is a universal right protected in both the
Universal Declaration of Human Rights1 and the European Convention for the Protection of
Human Rights and Fundamental Freedoms 1950 (the European Convention).2 It is not an
unqualified right and does not entitle one to positive assistance in founding a family.3 But it

* School of Law, University of Liverpool; School of Law, University of Sussex. The article is based on a presentation the
authors gave at the ‘Surrogacy Law Reform Conference: Surrogacy in the 21st Century: Rethinking Assumptions,
Reforming Law’ held on 6 May 2016, London. The authors thank Dr Kirsty Horsey for the invitation to participate at
the conference and the audience for constructive feedback received. We also thank Professors Gillian Douglas, Marie Fox
and the two anonymous reviewers of the journal for feedback on earlier drafts of the paper.
1 Article 16(1) of the United Nations Universal Declaration of Human Rights 1948 (the UN Declaration) provides that: ‘Men
and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a
family’.
2 The European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the European
Convention) declares in Art 12 that: ‘Men and women of marriageable age have the right to marry and to found a family’.
Article 8 provides everyone has a right to private and family life.
3 In Evans v Amicus Healthcare Ltd; Hadley v Midland Fertility Services Ltd [2003] EWHC 2161 (Fam), [2004] 1 FLR 67,
at para [264], Wall LJ described any right to found a family in the following terms: ‘The right to found a family though IVF
can only, put at its highest, amount to the right to have access to IVF treatment. Self-evidently, it cannot be a right to be
treated successfully. Furthermore, it is a right which is qualified by availability, suitability for treatment and cost’. See also
Briody v St Helen’s and Knowsley Area Health Authority (2001) EWCA Civ 1010, [2001] 2 FLR 1094, per Hale LJ, at
para [26]: ‘While everyone has the right to try to have their own children by natural means, no one has the right to be
provided with a child’; and the earlier decision of R v Secretary of State for the Home Department ex parte Mellor (2001)
EWCA Civ 472, [2001] 2 FLR 1158.
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166 Child and Family Law Quarterly, Vol 29, No 2, 2017

does mean that certain impediments to founding a family are illegitimate. While procreation
through sexual intercourse is the traditional method of founding a family, some individuals may
have to rely upon assisted reproduction methods or surrogacy (the process whereby a woman
gestates a child for another person/couple) in order to found a family. Regulating assisted
reproduction is no easy feat and regulation of surrogacy is no exception. The UK was one of
the first countries in the world to offer a comprehensive regulatory framework to govern
assisted reproductive technologies (ARTs) after a lengthy process.4 This can be contrasted with
the ad hoc, knee jerk reaction to regulate surrogacy, which culminated in the Surrogacy
Arrangements Act 1985, which Freeman noted was ‘an ill-considered and largely irrelevant
panic measure, which in essence criminalised commercial surrogacy’.5 Whilst the UK may have
initially led the way in the regulation of other assisted reproductive technologies, since 1985,
the law governing surrogacy has developed in a haphazard fashion and piecemeal changes
made over the years have resulted in a regulatory framework that is contradictory and
confusing for all involved. As increasing numbers resort to founding a family through
surrogacy,6 the law has struggled to adapt to changes in social attitudes and the increasing
demand. There is a real concern that the law is failing either to adequately respect the private
and family lives of those who wish to procreate in this manner, or to protect the welfare of
children born via such arrangements. The latest spur to improve regulation in this area is the
recent High Court declaration that the legislative provision that bars a parental order being
granted to a single person (as opposed to a couple) is incompatible with the Human Rights Act
1998.7 Following this declaration and the recent recognition of surrogacy as an area in need of
law reform in the Law Commission’s 13th Programme consultation,8 it is anticipated that
reform in this area may be imminent.

In seeking to contribute to the debate on what shape reform may take, this paper is split into
two parts. In the first part, we discuss the prevalence and incidence of surrogacy, briefly setting
out the present regulatory framework and inadequacies in the legislation governing surrogacy;
namely the Surrogacy Arrangements Act 1985 and (in respect of the making of parental orders)
the Human Fertilisation and Embryology Acts 1990 and 2008. As optimism surrounding future
reform grows, we suggest that one area of law in particular need of reform is that pertaining to
parental orders, which prescribe the conditions for granting legal parenthood to those who
wish to parent children born via a surrogate. We set out the importance of a parental order
both for the child and the parents, before illustrating the effects of the current restrictive
conditions for the making of such an order, which have left some children living in the UK
without any identified legal parent. We argue that the anomalies judicial decisions have
generated intensify the case for reform.

In Part II of the paper, having identified gaps and inconsistencies in the present regulatory
framework, we discuss how the law in the UK can be reformed so that it is ‘fit for purpose in

4 Legislation to regulate assisted human reproduction arose only after lengthy consideration of the issues by the Report of the
Committee of Inquiry into Human Fertilisation and Embryology, Cmnd 9314 (1984) – hereafter the Warnock Committee.
There was also a protracted process of public consultation through the Green and White Papers: The Legislation of Human
Infertility Services and Embryo Research, Cm 46 (1986) and the White Paper Human Fertilisation and Embryology: A
Framework for Legislation, Cm 259 (1987) respectively.
5 M Freeman, ‘Is Surrogacy Exploitative?’ in S McLean (ed), Legal Issues in Human Reproduction (Dartmouth, 1989), at
p 165.
6 M Crawshaw, E Blyth and O Akker, ‘The changing profile of surrogacy in the UK – Implications for national and
international policy and practice’ (2012) 34(3) Journal of Social Welfare and Family Law 265.
7 Re Z (A Child) (No 2) [2016] EWHC 1191 (Fam), [2017] Fam 25.
8 www.lawcom.gov.uk/13th-programme-of-law-reform-consultation/.
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The regulation of surrogacy in the United Kingdom 167

the 21st Century’.9 We argue that the time is opportune for a new statute governing this
contentious area and make the following three proposals for reform: (a) a pre-conception
regulatory framework; (b) permitting moderate payment; (c) widening access to parenthood
and moving away from the two-parent model.
In making proposals for reform, we acknowledge that on a global level, suggestions for
international reform have been made.10 Whilst we agree that an international convention/
framework is needed, in this paper we focus on regulation in the domestic context for two
reasons: first, a better domestic regulatory framework may reduce the number of individuals/
couples from this jurisdiction entering into international surrogacy arrangements. Secondly,
given the fact that the UK regulatory system of assisted reproduction is one that has been
emulated worldwide, it is important that the UK improves the present legal framework so that
it is fit for purpose and provides certainty and clarity for all those involved. Whilst
acknowledging arguments that contend regulation has no place in the founding of families,11 in
the context of surrogacy, it has been plausibly argued that regulation is required to ‘ensure the
best protection of the various vulnerable parties’.12 Legislation is the best mechanism for reform
as it maintains the UK government’s current stance that assisted reproduction warrants
specialist regulation and brings this area into line with the regulation of other areas of assisted
reproduction.13

Part I: mind the gaps!

The regulatory framework
It was amidst much controversy that the principal statute regulating surrogacy in the UK, the
Surrogacy Arrangements Act 1985 (SAA) was born. In January 1985, there was a public outcry
when married mother of two, Kim Cotton, received £6500 for acting as a surrogate,14 in what
was condemned as a ‘baby-for-cash-deal’.15 After local authority intervention the commission-
ing parents were ultimately granted wardship by the courts. In the judgment, Latey J referred to
the ‘difficult and delicate problems of ethics, morality and social desirability raised by
surrogacy’.16 This was actually the second case of surrogacy to come before the British courts;
the first having occurred some nine years earlier, in 1976,17 in the case of A v C.18 The

9 One of the stated aims when revising the legislation. Department of Health, Review of the Human Fertilisation and
Embryology Act: Proposals for revised legislation (including establishment of the Regulatory Authority for Tissue and
Embryos), Cm 6989 (2006).
10 See Permanent Bureau of The Hague Conference, Private International Law Issues Surrounding The Status of Children,
Including Issues Arising From International Surrogacy Agreements Report (2011): www.hcch.net/upload/wop/
genaff2011pd11e.pdf; A-M Hutchinson, ‘The Hague Convention on Surrogacy: Should we agree to disagree?’ ABC Section
of Family Law, 2012 Fall CLE Conference, Philadelphia; J McCandless, L Brunet and K Davaki, A Comparative Study on
the Regime of Surrogacy in EU Member States (European Parliament, 2013); K Trimmings and P Beaumont (eds),
International Surrogacy Arrangements: Legal Regulation at the International Level (Hart Publishing, 2013). For a book
review see E Walmsley and A Alghrani on K Trimmings and P Beaumont, ‘International Surrogacy Arrangements: Legal
Regulation at the International Level’ [2015] CFLQ 467.
11 A Alghrani and J Harris, ‘Should the Foundation of Families be Regulated?’ [2006] CFLQ 191.
12 Brazier Report, Surrogacy: Review for Health Ministers of Current Arrangements for Payments and Regulation, Cm 4068
(1998) – hereafter ‘The Surrogacy Review’, para 6.5, p 49.
13 The United Kingdom is not alone in imposing specialist regulation of this area, Robert Lee and Derek Morgan noted: ‘Most
states have on examination, concluded that some form of regulatory control (usually through specially framed and
implemented legislation) is preferable to no regulation, although the nature of that regulation and review differs markedly’
in R Lee and D Morgan, Human Fertilisation and Embryology: Regulating the Reproductive Revolution (Blackstone Press,
2001), p 12.
14 Re C (A Minor) (Wardship: Surrogacy) [1985] FLR 846.
15 BBC, ‘Inquiry over “baby-for-cash” deal’, 4 January 1985, available at: http://news.bbc.co.uk/onthisday/hi/dates/stories/
january/4/newsid_2495000/2495857.stm. Accessed 16 March 2017.
16 [1985] FLR 846.
17 Only reported in 1985.
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168 Child and Family Law Quarterly, Vol 29, No 2, 2017

commissioning parents, Mr A and Mrs B (a divorcee with whom he lived and who was unable
to bear children), offered a prostitute £3500, virtually their life savings, to have Mr A’s child.
She refused but for £500 located a 19-year-old woman, Miss C, ‘who was on the fringe of that
world’ and who agreed to bear Mr A’s child for £3000 and at birth to hand over the child to the
couple. Miss C was artificially inseminated with Mr A’s sperm at a clinic and in due course gave
birth to a son. However Miss C changed her mind and refused to surrender the child. Mr A was
initially granted access to the child but this was withdrawn on appeal. The arrangement was
described by Ormrod LJ as a ‘totally inhuman proceeding’19 and a ‘sordid commercial
bargain’.20

It was against this backdrop that the Surrogacy Arrangements Act 198521 was enacted. Its
provisions were based upon the recommendations of the Committee of Inquiry into Human
Fertilisation and Embryology in 1984.22 The Warnock Committee was concerned with the ‘risk
of commercial exploitation of surrogacy’23 and had recommended that ‘legislation be intro-
duced to render criminal the creation or the operation in the UK of agencies whose purposes
include the recruitment of women for surrogate pregnancy or making arrangements for
individuals or couples who wish to utilise the services of a carrying mother’.24 The Warnock
Committee’s hostility towards commercial surrogacy as a method of founding a family was
clear and they were unanimous that surrogacy for convenience alone was ethically unaccepta-
ble. The majority went further and held that even in compelling medical circumstances, ‘the
danger of exploitation of one human being by another appears to the majority of us far to
outweigh the potential benefits, in almost every case’.25 The Report clearly influenced the
restrictive stance taken in the SAA 1985 which, thirty-two years later, remains the primary
legislation governing surrogacy in the UK.

The SAA 1985 makes it a criminal offence to be commercially involved in the initiation and
negotiation of surrogacy arrangements, or to be involved in publicising or advertising surrogacy
arrangements.26 Notwithstanding the fact that the primary purpose of the practice is to bring
about the creation of a child, both the 1985 Act and the Warnock Report were notably silent as
to the welfare of the child (it was only mentioned once, in passing, in the Report). Five years
after the enactment of the SAA 1985, the Human Fertilisation and Embryology Act 199027
addressed the issue of parenthood for children conceived by assisted reproduction methods.
This statute introduced parental orders that would enable the transfer of legal parenthood from
the surrogate (and her husband if she had one) to the commissioning parents. The following
criteria had to be satisfied before one would be eligible to apply for a parental order: the
applicants had to be married; aged over 18; domiciled in the UK, Channel Islands or Isle of
Man; at least one of them had to have a genetic link to the child; the application must have
been made within six months of the child’s birth; the existing legal parents must have consented
to the parental order; the child’s home must be with the commissioning parents; and lastly only
reasonable expenses must have been paid to the surrogate. The 1990 Act also inserted a new

18 [1985] FLR 445.

19 Ibid, p 454.
20 Ibid, p 457.
21 Hereafter the SAA 1985.
22 M Warnock, Report of the Committee of Inquiry into Human Fertilisation and Embryology, Cmnd 9314 (1984). The
committee was set up in 1982 to ‘examine the social, legal and ethical implications of recent and potential developments in
the field’. Hereafter referred to as ‘The Warnock Committee’.
23 Ibid, para 8.18.
24 Ibid.
25 Ibid, para 8.17.
26 Section 2.
27 Hereafter ‘the 1990 Act’.
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The regulation of surrogacy in the United Kingdom 169

section into the Surrogacy Arrangements Act 1985 that no surrogacy arrangement is enforce-
able by or against any of the parties making it.28

Appearing to ‘accept the need for reform’,29 partially in response to a US surrogacy agency
seeking to operate in the UK30, the government in 1998 commissioned the Surrogacy Review.31
None of its recommendations were ever implemented. The report proposed a new Surrogacy
Act, backed by a Code of Practice which would set out a model of good practice for couples
and surrogates, including discouragement of multiple surrogacy and a frank exchange of
information to all involved. Underpinning the recommendations was the central proposal that
the prohibition of any payment to surrogate mothers, other than compensation for specific
expenses actually incurred as a result of the pregnancy, should be retained. Freeman criticised
the Surrogacy Review for focusing on payments to surrogates rather than child welfare32 and
argued against the prohibition on payment stating ‘the [Surrogacy Review] fails to appreciate
that withdrawing remuneration from surrogates will only drive potential surrogates away from
regulated surrogacy into an invisible and socially uncontrolled world where the regulators will
be more like pimps than adoption agencies’.33

The Human Fertilisation and Embryology Act 200834 made changes to the 1990 Act that
extended the provisions on legal parenthood for those who found a family through assisted
conception. Eligibility to apply for parental orders was broadened to encompass those in a
same-sex relationship or ‘two persons living as partners in an enduring family relationship and
not within the prohibited degrees of relationship to each other’.35

Finally, the Human Fertilisation and Embryology (Parental Orders) Regulations 201036 which
accompany the 2008 Act, belatedly applied section 1 of the Adoption and Children Act (ACA)
2002 to parental order applications so that the child’s welfare must now be the court’s
‘paramount consideration . . . throughout his lifetime’. As the welfare of the child has to be
considered from a lifelong perspective, rather than just through childhood, and the court must
have regard to the welfare checklist as set out in section 1 of the ACA 2002, the welfare of the
child is no longer simply one consideration among many, but rather the consideration which
should override all others.

These later piecemeal changes have attracted criticism that they have made the substantive
provisions of the SAA 1985 unworkable.37 Courts are in effect being forced to grant parental
orders in order to comply with the welfare of the child provision, as per the 2010 Regulations,
notwithstanding the fact that some of the provisions of section 54 of the Human Fertilisation
and Embryology Act 2008 have not been complied with, for instance where expenses which
exceeded ‘reasonable expenses’ have been paid to the surrogate. The law has become
increasingly out-dated and detached from the reality of the practice. The difficult realities

28 Section 1A of the Surrogacy Act 1985, inserted by s 36 of the HFE Act 1990.
29 E Jackson, Medical Law Text, Cases and Materials (Oxford University Press, 2013), at p 846.
30 M Brazier and E Cave, Medicine, Patients and the Law (Penguin Books, 2011).
31 The Surrogacy Review, see footnote 12 above.
32 M Freeman, ‘Does Surrogacy Have a Future After Brazier?’ (1999) 7 Medical Law Review 1, p 8.
33 Ibid, p 10.
34 Hereafter the 2008 Act. On the 2008 statute see M Fox, ‘The Human Fertilisation and Embryology Act 2008: Tinkering at
the Margins’ (2009) 17 Feminist Legal Studies 333; J McCandless and S Sheldon, ‘The Human Fertilisation and
Embryology Act (2008) and the tenacity of the sexual family form’ (2010) 73 Modern Law Review 175.
35 Section 54 of the 2008 Act.
36 SI 2010/985. Hereafter, ‘the 2010 Regulations’.
37 K Horsey and S Sheldon, ‘Still hazy after all these years: The law regulating surrogacy’ (2012) 20 Medical Law Review 67.
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170 Child and Family Law Quarterly, Vol 29, No 2, 2017

emerging out of such out-dated law are revealed in stories of surrogates handing over newborn
babies in hospital car parks and surrogates having to sign consent forms for medical treatment
for a child that they do not consider theirs.38

In contrast to the hostility surrounding surrogacy when the SAA 1985 was enacted, societal and
judicial attitudes towards the practice have since become more accepting. In Re T,39 Baker J
noted how ‘the practice of surrogacy – whereby a woman gives birth to a child for others – has
been accepted as a method of enabling childless couples to experience the joy and fulfilment of
parenthood’.40 The media, which once condemned Kim Cotton for surrogacy, now covers
stories of Elton John,41 Sarah Jessica Parker42 and Nicole Kidman,43 who have all used
surrogacy as a means of founding a family, in more neutral terms. Related to the acceptance of
the practice, with low cost flights abroad and easy access to the Internet, increasing numbers
are evading the restrictive regulation of surrogacy in the UK, and resorting to informal or
overseas commercial surrogacy arrangements.44 We now turn to how prevalent the practice is
in the UK, noting that there is no systematic data collection on surrogacy and it remains
‘under-researched both nationally and internationally’.45

Prevalence and incidence of surrogacy

Reliable data on surrogacy in the UK is largely absent. The General Registry Office (GRO) is
the government agency responsible for the registration of births in England and Wales. Valuable
research undertaken by Crawshaw et al into GRO data reported that parental orders
quadrupled in the period 1995–2013.46 Official sources show that in 2014, 272 parental orders
were granted; 39% of those were for children born via overseas surrogates. This represents a
sharp increase from 2008 when only 2% of the children were born via overseas surrogates.47
Thus from what little official data on surrogacy exists, it is known that surrogacy is generally
on the increase, yet the lack of more meaningful information creates real cause for concern. In
November 2015, the Surrogacy UK Working Group on Surrogacy Law Reform48 in a report
titled Surrogacy in the UK: Myth Busting and Reform,49 sought ‘to highlight the reality of the
practice of surrogacy in the UK in 2015, while recognising the problems that international
surrogacy arrangements may bring’.50 They reported that ‘as there is no requirement to apply

38 NHS Trusts often make parties leave their premises to hand over the child as they do not want to be liable if a dispute
occurs and it is within the hospital grounds. See: www.independent.co.uk/news/uk/home-news/nhs-surrogate-births-rules-
laws-parents-babies-handed-over-car-parks-a7381646.html.
39 Re T (A Child) (Surrogacy: Residence Order) [2011] EWHC 33 (Fam), [2011] 2 FLR 392.
40 Ibid.
41 H Pidd, ‘You can tell everybody, this is our son: Elton John becomes a father at 63’ Guardian, 28 December 2010.
42 V Groskop, ‘What is the truth behind Sarah Jessica Parker’s use of a surrogate?’ Guardian, 30 April 2009.
43 ‘Nicole Kidman announces birth of daughter born through surrogate’ Guardian, 17 January 2011.
44 M Crawshaw, E Blyth and O Akker, ‘The changing profile of surrogacy in the UK – Implications for national and
international policy and practice’ (2012) 34(3) Journal of Social Welfare and Family Law 265.
45 Ibid.
46 Ibid.
47 Figures given by Crawshaw et al, above n 44, from General Registry Office data.
48 Surrogacy UK, one of the not for profit surrogacy agencies in the UK, set up the Working Group on Surrogacy Law Reform
to highlight the need for urgent reform of surrogacy law in the UK. It is composed of representatives of Surrogacy UK, a
lawyer, academic and the Director of the Progress Educational Trust.
49 The report was based on the findings of an online survey from June–August 2015, asking respondents questions about their
experiences of surrogacy. There were 434 responses overall, including from 111 surrogates and 206 commissioning parents.
The report is available at: www.kent.ac.uk/law/research/projects/current/surrogacy/Surrogacy%20in%20the%20UK%20
Report%20FINAL.pdf (last accessed 2 March 2017).
50 Ibid, p 5.
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The regulation of surrogacy in the United Kingdom 171

for a PO, and because there are limits on who may do so, parental order records themselves are
not a true indicator of how many surrogacy arrangements are entered into, or where they take
place’.51
Whilst rates of domestic and foreign surrogacy arrangements are believed to have risen
significantly in recent years, the extent of the increase and the nature of the arrangements
remain largely unknown. This is a concern, as we will show in the next section how foreign
surrogacy jeopardises the welfare of the child in that obtaining a parental order becomes more
difficult. In one case, the effect of the law ‘was that the children were marooned stateless and
parentless’.52 Yet due to lack of data we do not know the full extent of the problem.
Details of the characteristics of surrogates and commissioning parents (sexual orientation,
relationship status, ethnicity, social class, whether donor gametes have been used) are available
from some sources (for example parental order files) but have not been collated and analysed.
There is also a lack of analysis into the motivations and experiences of using a surrogate or
acting as a surrogate. Whilst there have been empirical studies undertaken with children born
through surrogacy, surrogates and commissioning parents, these are developmental psychology
studies.53 There has, to date, been no sociological empirical research which seeks to explore the
current profile of domestic surrogacy, how people are negotiating it and the impact of current
regulation of surrogacy on all interested parties. This lack of monitoring contrasts sharply with
the rigorous nature in which data on other methods of assisted reproduction, notably IVF, are
collated and analysed. Such information is important in order to glean important facts about
family creation in the UK, for example, who is driving demand for surrogacy, who is excluded
from accessing it and what forms of families are being created. This lack of data is also at odds
with the special significance that law and society have always attached to a person’s status;54 in
particular legal parenthood, which has important and far-ranging implications on both the
adult and the child. In Re E and F (Assisted Reproduction: Parent),55 Cobb J highlights this
importance:
‘The legal status of “parent” carries with it implications for: (i) the law relating to contact
& residence (section 10(4)(a) Children Act 1989); (ii) child maintenance (Schedule 1,
para 4 and 10 Children Act 1989 as amended by Schedule 6 HFEA 2008); (iii) inheritance
(section 48(5) HFEA 2008); (iv) “bring(ing) and defend(ing) proceedings about the child”
(Baroness Hale in Re G [2006] UKHL 43, [2006] 2 FLR 629, at §32); and importantly: (v)
“mak(ing) the child a member of that person’s family” (Re G ibid)’56
Despite this lack of information and the importance attached to accurately identifying who is a
parent, it is evident that the law and regulation is not responding to the needs of some of those
who are using and being born through surrogacy arrangements.

Parental orders – attaining parenthood through surrogacy

In order to obtain a parental order, commissioning parents must comply with all the provisions
of section 54 of the HFEA 2008 and follow the procedure as set out in Part 13 of the Family

51 Ibid, p 13.
52 Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam), [2009] 1 FLR 733.
53 See S Imrie, V Jadva and S Golombok, ‘Surrogate mothers 10 years on: A longitudinal study of psychological well-being
and relationships with the parents and child’ (2015) 30(2) Human Reproduction 373. These studies show that children
born through surrogacy and surrogates themselves are within ‘normal’ levels of psychological adjustment.
54 Re E and F (Assisted Reproduction: Parent) [2013] EWHC 1418 (Fam), [2013] 2 FLR 1357, at para [1] and
Lord Wilberforce’s speech in Ampthill Peerage Case [1977] AC 547, at 568G–H.
55 [2013] EWHC 1418 (Fam), [2013] 2 FLR 1357.
56 Ibid, para [2].
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172 Child and Family Law Quarterly, Vol 29, No 2, 2017

Procedure Rules 2010.57 The legal position is clear. Unless a parental order is made, the legal
mother of any child born following a surrogacy arrangement entered into here or abroad is the
surrogate mother who gives birth to the child; she will also have parental responsibility.58 If the
surrogate mother is married, her husband is the legal father of the child, even though he may
have no biological relationship with the child.59 If the surrogate mother has a civil partner, that
partner will be the child’s legal parent.60 If the surrogate mother is unmarried, does not have a
civil partner, and the commissioning father has a biological connection with the child, he is the
legal father, but he may not have parental responsibility.61 That usually depends on whether his
name is on the birth certificate or he and the child’s mother have made an agreement for him to
have parental responsibility for the child.62

A parental order, if made, results in the commissioning parents becoming the child’s legal
parents and extinguishes the surrogate mother’s status as the child’s legal mother, together with
that of her husband or any other legal parent. Importantly, such an order gives the
commissioning parents parental responsibility.63 Without a parental order, the commissioning
parents will not be the legal parents of the child. They may not have parental responsibility and
whilst this in itself may not affect their ability to provide day-to-day care for the child, it may
have long-term consequences (for example affecting inheritance rights) and could affect their
ability to take certain steps on behalf of the child (for example, apply for a passport). There is
a great concern about the number of children being raised by commissioning parents who do
not have parental orders, as voiced by Theis J in Re C and D (Children) (Parental Order):

‘I am not concerned about the children who are the subject of parental order applications,
but am more concerned about those who are not. There is a real risk that those who care
for children born as a result of these arrangements may be inadvertently sleepwalking into
an uncertain legal future for their much wanted child. That uncertainty is very likely to be
detrimental to that child’s long-term welfare. I sincerely hope publication of this judgment
will assist people who may be in that situation.’64

Parental orders which transfer parentage from the surrogate to the intended parents go to the
most fundamental aspects of status and to the very identity of the child, who s/he is and who
his/her parents are. It is central to a child’s being, whether as an individual or as a member of
his family. These matters are fundamental to both the commissioning parents and the child. A
parental order has, to adopt Theis J’s powerful expression, ‘a transformative effect’, not just in
its effect on the child’s legal relationships with the surrogate and commissioning parents, but
also in relation to the practical and psychological realities of the child’s identity; it creates what
Thorpe LJ in Re J (Adoption: Non-Patrial)65 referred to as ‘the psychological relationship of
parent and child with all its far-reaching manifestations and consequences’.66 These judicial
pronouncements support our view that legal parenthood is of the utmost importance for both
the adult and child. This is not to negate other parental relationships that are not based on

57 SI 2010/2955 (FPR 2010).

58 HFE Act 2008, s 33.
59 HFE Act 2008, s 35.
60 HFE Act 2008, s 42 and s 44.
61 If the commissioning father’s sperm is used he will automatically be the legal parent if no one else has been nominated as a
legal parent and will acquire parental responsibility when registered on the birth certificate. See HFE Act 2008, ss 36–38.
62 For acquisition of parental responsibility see Children Act 1989, s 4.
63 Parental responsibility is defined in s 3 of the Children Act 1989 as ‘all the rights, duties, powers, responsibilities and
authority which by law a parent has in relation to the child and administration of his/her property’.
64 [2015] EWHC 2080 (Fam), [2015] Fam Law 1192, at para [13].
65 [1998] INLR 424.
66 Ibid, p 429.
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The regulation of surrogacy in the United Kingdom 173

established legal links, such as social and psychological parenthood.67 However, to deprive
individuals who choose to found a family via surrogacy of parental status, simply because they
have used this method, is discriminatory and fails to acknowledge the societal and legal
developments in respect of alternative and diverse family structures, from which the regulation
of surrogacy is now out of sync.
Having discussed the importance of conferring parental status upon those who acquire
parenthood through surrogacy, we now outline the legal requirements needed to obtain a
parental order and how each requirement has proved problematic in practice.

Surrogacy and the single parent

Despite the fact that single parents can and do conceive children through surrogacy (as through
adoption and other forms of assisted reproduction), the law excludes them from applying for a
parental order. Whilst the 2008 Act amended section 30 of the 1990 Act to allow couples in a
civil partnership, married or in an enduring family relationship to apply for parental orders,
single people are still excluded from applying. Section 54(2) of the 2008 Act requires that the
applicants are husband and wife, or same-sex civil partners or two people who are living as
partners in an enduring family relationship.68 Legislation did not totally fail to take into
account the fact that section 54 still excluded single people. Dawn Primarolo, the Minister of
State at the Department of Health in 2008, in the parliamentary debate on the 2008 Act made
the case for the government, in response to the point that if single people are able to adopt and
to receive IVF, why can they not get a parental order in surrogacy cases? She stated that:
‘… surrogacy, however, involves agreeing to hand over a child even before conception. The
Government are still of the view that the magnitude of that means that it is best dealt with
by a couple. That is why we have made the arrangements that we have.’69
This was detailed in Re Z, where the judge, drawing on this argument, stated ‘although the
concept of who are a couple for this purpose has changed down the years, section 54 of the
2008 Act is clear that one person cannot apply . . . we know from what the Minister of State
said in 2008 that this was seen as a necessary distinction based on what were thought to be
important points of principle’.70
The irony with this revision is that a key legislative change in the 2008 Act was to revise the
controversial section 13(5) which mandated prospective parents be screened prior to being
offered treatment and in particular to stipulate that ‘a woman shall not be provided with
treatment services unless account has been taken of the welfare of the child who may be born as
a result of the treatment (including the need of that child for a father), and of any other child
who may be affected by the birth’. This was accompanied by guidance, which contained a list
of factors that clinics were required to consider in performing the welfare of the child
assessment.71 The provision sparked much criticism, not only because it clearly discriminated
against single and lesbian women,72 but also because clinicians used this guidance to interpret
the welfare provision in varied ways, which not surprisingly often resulted in very different
decisions being made from one clinic to the next.73 Such discrimination was unjustified, given

67 See Baroness Hale’s description of this important category of ‘parent’ in Re G (Children) [2006] UKHL 43, [2006] 2 FLR
629, at p 35.
68 Section 54(2).
69 See http://thejusticegap.com/2015/10/some-single-parents-cant-get-a-parental-order-even-for-their-own-child/.
70 [2016] EWHC 1191 (Fam), [2017] Fam 25.
71 This was the then HFEA Code of Practice, Sixth Edition, section 3.12.
72 See D Savas and S Treece, ‘Fertility Clinics: One Code of Practice?’ (1998) 3 Medical Law International 243.
73 See Tomorrow’s Children: Report of the policy review of welfare of the child assessments in licensed assisted conception
clinics (HFEA, 2005), at p 7.
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174 Child and Family Law Quarterly, Vol 29, No 2, 2017

that the assumption that good parenting requires two parents of either sex is flawed in the light
of social and psychological research.74 The welfare of the child provision was amended by the
2008 Act, which replaced the word ‘father’ with ‘supportive parenting’ thereby widening access
for single and lesbian women who wish to found a family using fertility treatment. Ironically,
the very legislation which revised the offending section 13(5), failed to acknowledge and revise
the stipulation in section 54, which, notwithstanding its extension to those in an ‘enduring
family relationship’, still meant single people could not apply for a parental order and thus
attain legal parenthood for a child created via surrogacy.

The criticisms levied against the former section 13(5) which made it harder for single women to
access assisted reproduction treatment75 continue to apply to the restriction barring single
individuals from attaining legal parenthood in relation to a child created via surrogacy.
Restricting eligibility for a parental order to couples discriminates against single parent
households and disregards the fact that the social climate in which the HFE Act now operates
has altered greatly from when the legislation was passed. Alternate family structures are now
more commonplace and acceptable. Increasing numbers of children are raised in single parent
households; single parent families currently comprise 16.2% of all families in the UK.76

This legal provision which precludes a single parent from obtaining a parental order, was
recently successfully challenged in the case of Re Z (A Child) (No 2).77 The applicant was the
British biological father of a 21-month-old boy known as ‘Z’, who was born through a
surrogacy arrangement in the United States and lived with his single father in the UK.
Following Z’s birth, the commissioning father obtained a declaratory judgment in Minnesota,
relieving the surrogate of any legal rights or responsibilities for Z and establishing the father’s
sole parentage of Z. As the father was not able to apply for a parental order, for the purposes
of English law, the surrogate mother remained Z’s mother and had sole decision-making rights.
This resulted in the unusual position that no one in the UK had parental responsibility for the
child. Consequently the child was made a ward of court during the proceedings. The applicant
successfully argued that section 54 constituted a discriminatory interference with a single
person’s rights to private and family life, and was thus inconsistent with Articles 8 and 14 of the
European Convention. The father’s case was supported by CAFCASS. The President of the
Family Division made a declaration of incompatibility.78 It has been demonstrated that the

74 H Reece, ‘Subverting the Stigmatisation Argument’ (1996) 23 J Law & Soc 484; S Golombok and F Tasker, ‘Do Parents
Influence the Sexual Orientation of Their Children? Findings from a Longitudinal Study of Lesbian Families’ (1996) 32
Development Psychology 3; F Tasker and S Golombok, ‘Adults Raised as Children in Lesbian Families’ (1995) 65(2) Amer
J Orthopsychiat 203; S Golombok, F Tasker and C Murray, ‘Children Raised in Fatherless Families from Infancy: Family
Relationships and the Socio-emotional Development of Children of Lesbian and Single Heterosexual Mothers’ (1997) 38(7)
Child Psychology 783.
75 E Jackson, ‘Conception and the Irrelevance of the Welfare Principle’ (2002) 65 Modern Law Review 176; G Pennings, ‘The
Welfare of the Child’ (1999) 14 Human Reproduction 1146; S Millns, ‘Making Social Judgements that go Beyond the
Purely Medical: The Reproductive Revolution and Access to Fertility Treatment Services’ in J Bridgeman and S Millns (ed),
Law and Body Politics: Regulating the Female Body (Dartmouth, 1995) 79; E Sutherland, ‘Man Not Included – Single
Women, Female Couples and Procreative Freedom in the UK’ [2003] CFLQ 155.
76 The Labour Force Survey, Office for National Statistics, Lone Parent Families in the UK by Country, 1996 to 2015 (ONS,
2016) revealed there were 3,022,000 ‘Lone Parent Families’ out of 18,712,000 in the UK in 2015: www.ons.gov.uk/
peoplepopulationandcommunity/birthsdeathsandmarriages/families/adhocs/
006183loneparentfamiliesintheukbycountry1996to2015, accessed 6 March 2017.
77 [2016] EWHC 1191 (Fam), [2017] Fam 25.
78 The Human Rights Act 1998 provides that the human rights contained in the European Convention form part of UK law.
All UK law must be interpreted, so far as it is possible to do so, in a way that is compatible with Convention rights. Section
4 provides that if the court is satisfied an Act of Parliament ‘is incompatible with a Convention right, it may make a
declaration of that incompatibility’. This does not affect the validity of the law; it remains up to Parliament to decide
whether or not to amend the law.
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The regulation of surrogacy in the United Kingdom 175

legislative requirements that stipulate only couples can attain a parental order discriminate
against the fundamental human rights of single individuals, thus supporting the case for
legislative reform.
Our argument that the law on parental orders is discriminatory is supported by the fact that it
is out of sync with both adoption law and assisted conception law, which both allow for single
parents to found a family through adoption79 or IVF.80 The only avenue to attain legal parental
status for single parents who found a family through surrogacy is to obtain an adoption order.
This occurred in B v C (Surrogacy: Adoption)81 when B, a single man in his mid-twenties,
entered into a surrogacy arrangement, leading to the birth of A, with his mother C (who had
acted as the surrogate) and her husband D. Theis J granted B’s application and made an
adoption order. Theis J set out the differences between adoption and parental orders as follows:
‘Both orders are transformative, but a parental order proceeds on the assumption one of
the applicants is the biological parent. That is one of the key criteria in s 54 HFEA. It
doesn’t change the child’s lineage as an adoption order does; a parental order creates a legal
parentage and removes the legal parentage of the birth family under the provisions of the
HFEA 2008. Unlike adoption there is already a biological link with the applicants before
the parental order application is made. Its purpose is to create legal parentage around an
already concluded lineage connection.
From the point of view of the child the orders are different. An adopted child is seen to
have had a family created for it, whereas in a surrogacy arrangement the child’s conception
and birth has been commissioned by the parents, the child has a biological connection and
the same identity as one of the parents. The latter arrangement is more congruent with a
parental order than an adoption order.
These differences are important welfare considerations from the child’s perspective. These
are the reality of the identity issues children will need to resolve. In surrogacy situations the
court by making a parental order settles the identity issue and does not leave other fictions
to be resolved, which could be the case if an adoption order was made in these
situations.’82
As is clear from this passage, adoption orders in these cases are inappropriate as they are
putting such individuals in the nonsensical situation that they are seeking to adopt their own
children. Given that we do allow single individuals to found a family via adoption or fertility
treatment and in light of the fact that there are no data, scientific or social, to support the thesis
that single people should not have the right to reproduce and to bring up children, this
requirement that only couples can apply for a parental order should be removed. In Part II of
the paper, the reforms we propose liberalise surrogacy in widening the ambit of those who may
attain legal parenthood and found a family through surrogacy. We suggest a move away from
the notion that parenthood can only be established via two individuals. Widening eligibility as
to who may apply for a parental order will result in more parents taking advantage of legal
avenues to formalise the surrogacy arrangement and attain legal parenthood, which we know is
important for both the child and parent.
The genetic link
Section 54(1) requires that one of the applicants must be genetically related to the child in order
to apply for a parental order. This requirement is again out of sync with other assisted

79 Section 51 of the Adoption and Children Act 2002 provides that ‘an application may be made by one person who has
attained the age of 21 years and is not married’.
80 The Human Fertilisation and Embryology Act 2008.
81 [2015] EWFC 17 (Fam), [2015] 1 FLR 1392.
82 Ibid, p 70.
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176 Child and Family Law Quarterly, Vol 29, No 2, 2017

reproduction methods – for instance a woman can be the parent of a child created via IVF with
donor gametes for which she and her partner share no genetic link.83 This provision serves to
exclude all those who have used a surrogate and donor gametes and precludes them from ever
being able to apply for a parental order. The Surrogacy Law Reform Project states that:
‘the rationale for this requirement in relation to surrogacy is to “legitimise” the relationship
and in some way to prevent and protect women and their husbands/partners being
pressured into (or deliberately and criminally embarking on) conceiving babies purely with
the aim of giving them away (harking back to previous links made between surrogacy and
“baby selling”).’84
It noted how in South Africa a corresponding provision was ruled unconstitutional in AB and
Another v Minister of Social Development.85 As the Amicus Curiae, the Centre for Child Law
contended, such a requirement ‘violates . . . rights to equality, dignity, reproductive health care,
autonomy and privacy’.86 On the argument that the welfare of the child was best served by
maintaining a requirement for one of the commissioning parents to be genetically related, the
judge in that case said: ‘this constitutes an insult to all those families that do not have a
parent–child genetic link’.87
Whilst we advocate correct legal parental status as being in both the interests of the child and
adult, one can be a parent without being genetically related to the child. Thus the prerequisite
of a genetic link to one of the applicants should not be a requirement to attaining that special
status. Given that we (rightly) do not minimise the role played by social parents when they have
founded a family via adoption because there is no genetic link, nor the role of those who have
reproduced using donor gametes, it is only fair and consistent that this requirement be removed
in the surrogacy context. Founding families is not a matter of genetics, but of love and
commitment.88 Removing this requirement will allow the law to be more consistent with other
areas of law and do more to protect the welfare of children in ensuring the individuals acting as
parents are able to apply for the corresponding legal parental status.

Time limits
Another pre-requisite to a parental order being granted is that ‘the application is made within 6
months of the birth of the child’.89 The underlying policy behind this provision, identified by
Eleanor King J in JP v LP (Surrogacy Arrangement: Wardship),90 was to provide for the speedy
consensual regularisation of the legal parental status of a child’s carers following a birth
resulting from a surrogacy arrangement. This rule was relaxed by the High Court in Re X (A
Child) (Surrogacy: Time Limit)91 when an application for a parental order was made two years
and two months after the child was born. The commissioning parents, who had the child with
the aid of an Indian surrogate and Indian IVF clinic, stated that the reason for the delay was

83 HFE Act 2008, s 33 – the mother that gestates the child is the legal mother once she has given birth, alongside her
partner/spouse.
84 See footnote 44 above, at p 33.
85 (40658/13) [2015] ZAGPPHC 580, [2015] 4 All SA 24.
86 Ibid, at 84.
87 Ibid.
88 See JL Hill, ‘What Does it Mean to be a “Parent”? The Claims of Biology as the Basis for Parental Rights’ (1991) 66 NYU
L Rev 353; A Bainham, ‘Parentage, Parenthood and Parental Responsibility: Subtle, Elusive Yet Important Distinctions’ in
A Bainham, S Day Sclater and M Richards (eds), What is a Parent? A Socio-legal Analysis (Hart Publishing, 1999). See also
arguments regarding the intention to parent in G Douglas, ‘The Intention to be a Parent and the Making of Mothers’ (1994)
57 Modern Law Review 634.
89 HFE Act 2008, s 54(3).
90 [2014] EWHC 595 (Fam), [2015] 1 FLR 307.
91 [2014] EWHC 3135 (Fam), [2015] 1 FLR 349.
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The regulation of surrogacy in the United Kingdom 177

because they were unaware of the need to apply for a parental order. Trimmings comments that
the judgment demonstrates ‘the willingness of the court to continue stretching the statutory
requirements of section 54 and thus reaffirms the trend towards a more and more lenient
approach to parental order applications’.92 However, she notes that it is plausible that the court
‘sought to ease the plight of the commissioning parents in the present case by relaxing the
apparently absolute nature of the six-month time limit. On the other hand, however, it has to
be asked how far statutory rules should be bent by the court in order to achieve justice in
individual cases’.93 We argue that the fact the judiciary are being placed in this position clearly
highlights the case for legislative reform. Statutory rules should not have to be ‘bent’ by the
courts.
Again, in Re C and D (Children) (Parental Order)94 a parental order application was granted
despite being made 17 months after expiry of the time limit. Granting the application, Theis J
stated that it was in the children’s lifelong welfare interests for a parental order to be made, that
a purposive construction could be given to the time requirement in section 54(3) and that, in
any event, it was possible to ‘read down’ the provision to give effect to the human rights
engaged, in particular Article 8 of the European Convention. She spoke of ‘the transcendental
importance of a parental order, with its consequences stretching many, many decades into the
future’ and how, ‘given the consequences for the commissioning parents, never mind those for
the child, to construe section 54(3) as barring forever an application made just one day late is
not, in my judgment, sensible. It is the very antithesis of sensible; it is almost nonsensical’.95
This decision again strengthens our argument that this provision should be repealed; parents
are sometimes not aware they have to apply for a parental order, adherence to such a provision
is not always in the child’s best interests and lastly the judiciary should not have to bend the law
in order to achieve justice in individual cases.

Domicile
There is no requirement under section 54 that either the applicant or the child should be
present in the UK. The court’s jurisdiction to make a parental order rests solely on the
requirement in section 54(4)(b) that at least one of the applicants has a domicile in a part of the
United Kingdom, Channel Islands or the Isle of Man. The key principles for domicile were set
out in CC v DD96 and in AB (Surrogacy: Domicile)97 the court emphasised that a finding of
domicile of choice must be determined by reference to the individual facts of each case. In this
application for parental orders, the applicants, AB and CD, had entered into a surrogacy
arrangement with the respondent gestational surrogate, GH, through a commercial surrogacy
agency in Illinois, USA. As all the other requirements of section 54 had been met, the court had
to determine whether at least one of the applicants was ‘domiciled’ in the jurisdiction at the
time of the application and at the time of making the order. The applicants’ domicile of origin
was Germany, although one of the applicants – CD – asserted that she had acquired a domicile
of choice in the jurisdiction of England and Wales which she retained even though the
applicants had not lived in England for any length of time since 2013, due to force of
circumstances, including a necessary sale of the family home in England. Moreover the
applicants had not been able to take the children out of the jurisdiction of Germany as a result
of the children’s legal status (both held only American passports). The application was granted.

92 K Trimmings, ‘Six-month deadline for applications for parental orders relaxed by the High Court’ (2015) 37(2) Journal of
Social Welfare and Family Law 241, at 243.
93 Ibid.
94 [2015] EWHC 2080 (Fam), [2015] Fam Law 1192.
95 Ibid, at para [55].
96 CC v DD [2014] EWHC 1307 (Fam).
97 AB (Surrogacy: Domicile) [2016] EWFC 63.
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178 Child and Family Law Quarterly, Vol 29, No 2, 2017

Whilst section 54(4)(a) of the 2008 Act requires the child’s home to be with the applicants at
the time of the application and the making of the order, it does not specify that the child’s or the
applicants’ home must be in the UK. In two cases regarding applications for parental orders the
judges have expressed concern regarding their jurisdiction to grant such applications when the
children were not in the UK.98 Despite the welfare of the child throughout his/her lifetime being
the paramount consideration, the 2008 Act differs from adoption law and practice as neither
the statute nor the regulations require that the children who are the subject of the parental
order are seen by the parental order reporter in their home. The legislation appears to provide
the court with the discretion to direct or judge the scope and arrangements for the welfare
oversight needed in any particular case. Parental orders can and have been made without the
child of the surrogacy arrangement ever being seen. Yet again this illustrates how the provisions
under section 54 do little to safeguard children born via surrogacy and are bypassed in practice.

Surrogate consent
Section 54 also stipulates that an application can only be made if the surrogate ‘freely, and with
full understanding of what is involved, agreed unconditionally to the making of the order’,99
unless the surrogate cannot be found or is incapable of giving consent.100 This consent is only
valid six weeks after the child’s birth. The difficulties of this requirement are evident in the case
of Re AB (Surrogacy: Consent)101 in which an application for parental orders was adjourned
due to the surrogate’s refusal to consent to the order being made, when the relationship
between herself and the commissioning parents broke down. The applicants, C and D, were the
biological parents of twins A and B. The respondents were E, the twins’ surrogate mother and
F, her partner. All the criteria for making a parental order in section 54 of the 2008 Act were
met, bar the one criterion in section 54(6) that the respondent and her partner consented to the
making of the order. Whilst they had handed over the twins to the commissioning parents and
had no wish to be involved in the children’s lives, they refused their consent to the parental
orders ‘due to their own feelings of injustice, rather than what is in the children’s best
interests’.102 As Theis J noted:
‘Without the respondent’s consent the application for a parental order comes to a juddering
halt, to the very great distress of the applicants. The result is that these children are left in
a legal limbo, where, contrary to what was agreed by the parties at the time of the
arrangement, the respondents will remain their legal parents even though they are not
biologically related to them and they expressly wish to play no part in the children’s
lives.’103
This refusal resulted in the two following consequences:
‘(1) They remain living with the applicants, who are their biological and psychological
parents, but not their legal parents. The child arrangements order, which gives the
applicants parental responsibility, lasts until they are 18 years old. (2) The respondents,
who wish to play no part in the children’s lives, remain the children’s legal parents
throughout their lives by virtue of ss 33 and 35 HFEA.’104

98 Hedley J in Re K (Foreign Surrogacy) [2010] EWHC 1180 (Fam), [2011] 1 FLR 533 and Russell J in Re Z (Foreign
Surrogacy: Allocation of Work: Guidance on Parental Order Reports) [2015] EWFC 90, [2016] 2 FLR 803.
99 Section 54(6).
100 Section 54(7).
101 [2016] EWHC 2643 (Fam), [2017] Fam Law 57.
102 Ibid, para [8].
103 Ibid, para [9].
104 Ibid, para [10].
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The regulation of surrogacy in the United Kingdom 179

The court therefore granted the application made by all parties to adjourn the matter generally,
acknowledging that whilst it is generally preferable to bring proceedings to an end, these were
quite exceptional circumstances. Clearly, this is a wholly unsatisfactory situation, with the law
not reflecting the reality of the situation.
Whilst surrogates do sometimes refuse to consent to parental orders for quite different reasons
to the above case, for instance where the surrogate wishes to raise the child herself,105 we argue
in Part II of this paper that such situations could be avoided by a better pre-conception
regulatory framework which contains adequate safeguards and ensures all parties are appropri-
ately informed as to what the process involves.

The unenforceable ban on payment

The last pre-requisite for a parental order to which we now turn, is the provision in
section 54(8) of the 2008 Act that the court be satisfied that no money or other benefit (other
than for expenses reasonably incurred) has been paid to the surrogate.106 This is in line with the
SAA 1985, which made it a criminal offence for anyone to play a part in a commercial
surrogacy arrangement. There is no definition of what constitutes ‘reasonable expenses’ and it
is left up to the individuals involved in a surrogacy arrangement to come to an agreement
regarding these expenses. A number of non-profit agencies such as Surrogacy UK,107 Childless-
ness Overcome Through Surrogacy (COTS)108 and Brilliant Beginnings109 have been set up to
facilitate altruistic surrogacy arrangements by making appropriate introductions. Brilliant
Beginnings have stated that at present ‘reasonable’ expenses can range from £12,000 –
£15,000.110 The recommendation by the Brazier Report that expenses should be statutorily
defined by a new Surrogacy Act111 was not acted upon, although it is debatable how much
certainty this would provide. In practice, expenses do often exceed what is ‘reasonable’. The
Surrogacy UK Working Group survey found that while overall the average compensation paid
was £10,859, forty-one percent of the respondents to their survey had paid more than
£15,000.112
Notwithstanding this prohibition, payments made that have clearly exceeded ‘reasonable
expenses’ have been retrospectively authorised by the courts, in at least five cases in the last
decade.113 The reason for this gap between theory and practice is that courts have been placed
in an impossible position by the stipulation in the 2010 Regulations that the child’s welfare
throughout the child’s life is the paramount consideration. Their impact was highlighted by
Hedley J in Re L (A Minor) when he stated: ‘It must follow that it will only be in the clearest
case of the abuse of public policy that the court will be able to withhold an order if otherwise
welfare considerations support its making’.114 The 2010 Regulations thus make it unlikely

105 Re Z (Surrogacy Agreements: Child Arrangements Orders) [2016] EWFC 34, [2017] 1 FLR 946.
106 SAA 1985, s 3.
107 www.surrogacyuk.org/.
108 www.surrogacy.org.uk/About_COTS.htm.
109 www.brilliantbeginnings.co.uk/. See also A Alghrani and D Griffiths, ‘Surrogacy: What is so “brilliant” about “Brilliant
Beginnings”?’ Bionews, September 2013.
110 www.brilliantbeginnings.co.uk/blog/how-much-can-uk-surrogates-get-paid. Accessed 11 April 2017.
111 The Surrogacy Review, see footnote 12 above, at p 59.
112 www.kent.ac.uk/law/research/projects/current/surrogacy/Surrogacy%20in%20the%20UK%20Report%20FINAL.pdf
(last accessed 2 March 2017).
113 Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam), [2009] 1 FLR 733; Re S (Parental Order) [2009] EWHC
2977 (Fam), [2010] 1 FLR 1156; Re L (Commercial Surrogacy) [2010] EWHC 3146 (Fam), [2011] 1 FLR 1423; Re IJ
(Foreign Surrogacy Agreement Parental Order) [2011] EWHC 921 (Fam), [2011] 2 FLR 646; A v P (Surrogacy: Parental
Order: Death of Applicant) [2011] EWHC 1738 (Fam), [2012] 2 FLR 145; J v G [2013] EWHC 1432 (Fam), [2014] 1
FLR 297.
114 Re L (Commercial Surrogacy) [2010] EWHC 3146 (Fam), [2011] 1 FLR 1423, at paras [9] and [10].
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180 Child and Family Law Quarterly, Vol 29, No 2, 2017

courts will ever refuse retrospectively to authorise payment and grant a parental order, when
the child/children are resident with the commissioning parents, especially where the surrogate
mother resides outside the jurisdiction. Were a court to declare expenses to be grossly
disproportionate, this would bar a parental order being granted, which could leave a child
parentless and in some cases stateless. This would not be in a child’s best interests, especially
when there are two perfectly capable parents who have already expended so much financially
and emotionally to create the child. It is clear that the current legal ban on payment is not
working and that this gap between theory and practice is exacerbated by the increasing ease by
which commissioning parents can travel to countries where commercial surrogacy is permissi-
ble.
In concluding Part I, we have endeavoured to illustrate that despite the fundamental importance
and significance of a parental order, for both a child and the commissioning parents, the overly
restrictive and anachronistic legal requirements needed to obtain one have resulted in
anomalies, inconsistencies and are generally bypassed in practice. We now suggest reforms to
regulation to ameliorate the situation.

Part II – Reform115
A pre-conception regulatory framework
Having outlined how reform in this area is long overdue, we argue that endeavours should be
made towards ‘prospective, facilitative, enabling and liberal regulation’.116 This should take the
form of a new pre-conception regulatory framework that has child welfare at its centre, as
opposed to the post hoc, in theory restrictive, but in practice ineffective, framework we
currently have. Studies show that children born through surrogacy show no detrimental
psychological effects,117 however as shown in Part I, current law surrounding surrogacy is
harming children. A pre-conception regulatory framework should be designed with the welfare
of any child/children created with the aid of a surrogate as the paramount concern. A system
regulated by a board or authority could be put in place, just as it is for those seeking the use of
assisted conception services such as IVF. Parties could be correctly informed and given
appropriate counselling before participating. A better regulatory regime in the UK will
hopefully mean fewer people resorting to international surrogacy and the problems it creates –
such as conflict of laws, which have left children stateless and parentless. This would bring this
method of family formation in line with other statutes governing children.118 Section 1(2) of the
Adoption and Children Act 2002 makes the welfare of the child throughout his life the
paramount consideration of both the court and the adoption agency in adoption proceedings.
The Human Fertilisation and Embryology Authority is responsible for licensing and monitoring
fertility clinics, which are mandated by law to consider the welfare of a child prior to offering
treatment.119 Similarly the Human Tissue Authority as set up by the Human Tissue Act 2004
has specific panels to ensure directed living donations have been free from duress or undue
influence and that no unlawful payments have been made. Whilst the lengthy bureaucracy,
duplication and delay in the adoption process has been criticised, it does offer a thorough

115 In this section we develop proposals first made with Professor Brazier in A Alghrani, D Griffiths and M Brazier, ‘Surrogacy
Law: From Piecemeal Tweaks to Sustained Review and Reform’ in A Diduck, N Peleg and H Reece (eds), Law in Society:
Reflections on Children, Family, Culture and Philosophy – Essays in Honour of Michael Freeman (Brill Publishers, 2014),
at p 425.
116 E Jackson, see footnote 29 above.
117 See footnote 47 above.
118 Section 1 of the Children Act 1989 has been considered but has been omitted from mention here since it is not relevant at
the point of family formation, as all the other provisions listed are; it exists for different circumstances and in that sense
serves a different purpose.
119 HFE Act 1990, s 13(5).
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The regulation of surrogacy in the United Kingdom 181

vetting process of prospective parents. Unlike the current prohibition on private commercial
surrogacy arrangements, which is difficult to enforce, the availability of officially regulated
surrogacy arrangements would hopefully eliminate most of the motivation for private/overseas
agreements that have later left children in legal limbo.

The position of the surrogate

At present the regulation of surrogacy comes in after the birth of the child. Parental orders were
designed to clarify who the legal parents were after a child had been handed over and to ensure
the surrogate had voluntarily consented. Our regulatory scheme would allow for the immediate
transfer of legal parentage at birth. This would offer greater certainty to all parties.120 We
suggest that the present requirements for a parental order that mandate the surrogate consents
to any parental order be removed from the legislation. This would resolve the inherent
uncertainty that permeates the current law, which stems from the fact that surrogacy
arrangements are not legally enforceable121 and it is the woman who gives birth to the baby
who is regarded as the legal ‘mother’.122 It also avoids the present situation whereby surrogates
who have handed over the child to the commissioning parent/s immediately after the birth, are
still the legal parents for at least six weeks and possibly longer, until a parental order is made
which releases them from parental responsibility. This delay leads to some of the problems
outlined earlier, for instance where the baby was handed over to the commissioning parents in
a car park due to hospitals’ fears that a dispute might arise.123 Immediate transfer of parentage
ensures such issues do not arise.
A change in the regulation of surrogacy to make surrogacy contracts enforceable would offer
more security to commissioning couples and might incentivise individuals to find surrogates
located within the UK. Whilst some may recoil at the idea that surrogates may be forced to
surrender the child against their will, we argue that this is a distortion of what the notion of
enforceability means. Pre-conception agreements, entered into following sound information
and guidance before conception happens, could avoid many of the current problems when
surrogates do not consent to a transfer of parentage. Usually agreements break down because
they have been entered into without proper understanding. Research shows that commissioning
parents increasingly get information from sources that are not robust, such as Google,
Facebook or Internet chat rooms.124 Pre-conception agreements would help avoid that. As part
of these agreements there would have to be robust information, guidance and consent
procedures. In Re G MacFarlane J condemned the absence of ‘any statutory or regulatory
umbrella’ that leaves the role of facilitating surrogacy arrangements to ‘groups of well-meaning
amateurs’.125 MacFarlane J recognised the ban on commercialisation meant that these agencies
are operating in a very restrictive environment. With proper accreditation, agencies could help
reduce some of the disputes that do arise, as they would be better resourced and regulated.
Disputes that do arise between surrogate and commissioning parents after the birth could be
litigated and the court can assess which party can best meet the best interests of the child, as is
the situation at present when a dispute occurs and a child arrangements order is sought.126

120 It is extremely rare for a surrogate to change her mind. Yet there is still great fear of either party reneging on agreements.
See K Horsey, ‘Fraying at the edges – UK surrogacy law’ (2015) 24(4) Medical Law Review 608.
121 SAA 1985, s 1B.
122 HFE Act 2008, s 33.
123 See n 34.
124 See footnote 130 below.
125 Re G (Surrogacy: Foreign Domicile) [2007] EWHC 2814 (Fam), [2008] 1 FLR 1047.
126 Children Act 1989, s 8.
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182 Child and Family Law Quarterly, Vol 29, No 2, 2017

Permitting moderate payment

A pre-conception regulatory framework could allow for agreed moderate payments and thus
we turn to our next suggestion for reform – removing the ban on payment. Here we depart
from the recommendations for reform from both The Surrogacy Review127 and The Surrogacy
UK Working Group on Surrogacy Law Reform.128 The current prohibition on commercial
surrogacy may deter women from acting as surrogates in the UK. Without reliable data on
surrogacy, we are left to speculate as to whether individuals are now resorting to overseas
arrangements simply because there is not the supply to meet the demand for this service in the
UK. Despite well-rehearsed arguments that the ban was implemented so as not to exploit
women,129 this has not stopped the practice but rather has compounded it, as the lack of UK
surrogates may drive people abroad to more exploitative situations, which causes problems
surrounding parental status. Thus allowing the payment of surrogates in the UK potentially
reduces such problems. Again more research is needed on this, not just with current surrogates,
but other women who might consider acting as a surrogate if payment were an option. In
addition, recent research has shown that some see compensated surrogacy as actually being
more ethical than altruistic surrogacy.130 Findings from an Australian empirical project on
cross-border reproduction showed that many commissioning parents were frustrated that they
could not properly compensate the surrogate and felt this added to the inequity of the
situation.131 Finally, as identified in Part I, we know that in several cases judges have authorised
payments that have exceeded reasonable expenses, so in practice the current law on altruistic
surrogacy is not working in any case.

Whilst some surrogates fear that payment may change the special relationship between
surrogate and the commissioning parents132 more research is needed on this. Those who oppose
payment note how allowing payment may put surrogacy out of sync with other forms of
assisted reproduction in the UK, which currently operate on an altruistic model (gamete
donation in particular).133 Commercial surrogacy is not supported in the Report of the
Surrogacy UK Working Group on Surrogacy Law Reform,134 who, in suggesting reform, stated
that ‘we must guard the principle of altruistic surrogacy in the UK – surrogacy as a relationship
not a transaction’.135 Instead it argued that reasonable costs should be revisited and increased
slightly.

As Jackson et al have shown, payment and altruism do not have to be mutually exclusive.136
They can be mutually intertwined and if payment is permitted, it need not be compulsory, those

127 The Surrogacy Review, see footnote 12 above.

128 See Surrogacy UK Working Group on Surrogacy Law Reform Report, footnote 49 above, para 5.2.
129 For more on exploitation see A Wertheimer, ‘Exploitation and Commercial Surrogacy’, (1996–1997) 74 Denv UL Rev
1215; A Wertheimer, Exploitation (Princeton University Press, 1999); E Anderson, ‘Is Women’s Labour a Commodity?’
(1990) 19(1) Philosophy & Public Affairs 71; S Roach Anleu, ‘For Love but Not for Money?’ (1992) 6(1) Gender and
Society 30.
130 E Jackson, J Millbank, I Karpin and A Stuhmcke, ‘Learning from Cross-Border Reproduction’ (2017) 25(1) Medical Law
Review 23.
131 Ibid.
132 Ibid.
133 See Surrogacy UK Working Group on Surrogacy Law Reform Report, see footnote 49 above, at para 5.2 which stated ‘we
do not support a move to commercial surrogacy as we see this as out of kilter with the policy behind altruistic gamete
donation’ (which is in line with the EU Tissue Directive). See also G Bahadur, ‘Altruism in assisted reproductive
technologies’ (2001) 2(3) Reprod Biomed Online 155.
134 Ibid.
135 Ibid, p 6.
136 See footnote 128.
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The regulation of surrogacy in the United Kingdom 183

who wish to act as a surrogate solely as an act of altruism could still do so.137 We believe there
is a strong case to be made that surrogates should be paid not just expenses, but for their actual
labour. We further contend that surrogacy can be distinguished from other ARTs, as the labour
involved is much more intensive than donating an egg or sperm.138 This apparent aversion to
using gestational labour for profit needs to be revised. As Freeman contends:

‘The money is paid to the surrogate not to compensate her for giving up the child, nor to
“buy” the child. The money is payment for her services, it is compensation for the burden
of pregnancy. The child may have a right not to be sold, but that is a distortion of what is
happening, even in cases of commercial surrogacy.’139

Similarly Erin and Harris argued:

‘It is never made clear why, for example, the use of a uterus for profit is undignified
whereas the use of a brain for profit, or a hand for profit, is not. It is difficult to escape the
ungenerous thought that the Warnock Committee were rather preoccupied with the
analogies between surrogacy and prostitution and felt that use of the reproductive organs
of the body for profit is of the essence of prostitution.’140

In noting how allowing payment and altruism are not mutually exclusive they further note:

‘Surrogacy, to be sure, is a very personal service; but it is one which is designed and
intended to do what is almost universally considered to be not only a good in itself but part
of the very meaning and purpose of life: namely to bring into existence children who are
wanted, who will be loved and who have every prospect of being cared for, protected and
successfully reared to adulthood. In all societies this costs money or money’s worth. In all
societies many people are involved in bringing this about, and many of them are paid for
their services, from doctors and nurses to teachers and child-minders. Surrogacy, it seems to
us, is just one further dimension of this range of services.’141

We argue one way forward would be to allow advertising, so as to help those who wish to enter
into such arrangements, permitting payment to agencies to cover their fees, and allowing a
‘moderate fee’ to be paid to surrogate mothers in addition to ‘reasonable expenses’. The
surrogate would be recompensed for her labour and not simply the financial costs of pregnancy.
The reader may ask what exactly do we mean by a ‘moderate fee’? One option might be to treat
surrogacy as akin to a full-time job and pay up to a maximum of the minimum wage of £7.50
for 37.5 hours over the 40 weeks of pregnancy adding up to a fee of £11,250.

Alternatively one could allow the market to set the fee. We suggest restricting payment to a
‘moderate sum’ in part, to avoid pricing many commissioning couples out of the market, so
that only those of considerable means would have this method of founding a family open to
them. If the UK fee is set too high, couples will still resort to other jurisdictions where a

137 Although in making this line of argument, we acknowledge that there is a question – often raised in the context of blood
donation – that if some are paid it will inevitably alter the experience of those prepared to do it for free. See A Fernandez
Montoya, ‘Altruism and payment in blood donation’ (1997) 18(3) Transfusion Science 379; RM Titmuss, The Gift
Relationship (Allen and Unwin, 1971).
138 For feminist arguments on embodied labour see R Fletcher, M Fox and J McCandless, ‘Legal Embodiment: Analysing the
Body of Healthcare Law’ (2008) 16(3) Medical Law Review 321.
139 M Freeman, ‘Is Surrogacy Exploitive?’ in S McLean (eds), Legal Issues in Human Reproduction (Dartmouth, 1989), at
p 178.
140 J Harris and CA Erin, ‘An Ethically Defensible Market in Organs’ (2002) 325 British Medical Journal 114.
141 Ibid.
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184 Child and Family Law Quarterly, Vol 29, No 2, 2017

surrogate’s services can be obtained for less. If it is set too low, the change in the law may not
produce more willing surrogates and thus commissioning individuals/couples will still look
abroad.142
In considering permitting payment, we have acknowledged what this may mean for the
surrogate and how it may alter her role once her services are rendered. Baroness Hale stated:
‘the fact that in English law the woman who bears the child is legally the child’s mother
recognises a deeper truth: that the process of carrying a child and giving him birth (which
may well be followed by breastfeeding for some months) brings with it, in the vast majority
of cases, a very special relationship between mother and child, a relationship which is
different from any other.’143
Research demonstrates that surrogates do not see themselves as parents, but sustained ties
between them and the families they have helped illustrate that for some, there may be a special
relationship created through the gestational link in the way that Baroness Hale outlines.144
Amrita Pande’s ethnography with Indian surrogates highlighted how the surrogate mothers
fostered kinship ties through shared bodily substances (blood and breast milk) and the labour
of gestation and birth.145 The women were seeking acknowledgement of their role: that they
went beyond merely providing a service or womb for nine months. In many cases this does not
happen, and for many who commission foreign surrogates, that may be deliberately so there is
little contact after the child is born. Transnational surrogacy thrived in India in part because it
relied on the fact that surrogate mothers and intended parents rarely, if ever, met face-to-
face.146 Under a pre-conception regulatory framework in the UK, the surrogate could become
more like a ‘gestational carrier’, with little contact with the commissioning parents or child. Yet
this is perhaps too simplistic a view and fails to recognise that contracts, payment and
enforceability can possibly co-exist with recognising the ‘very special relationship between
(gestational) mother and child’, particularly if we amend the formal links open to surrogates in
terms of their relationship to the child.

Widening access to parenthood and moving away from the two-parent model
In addition to widening eligibility for legal parenthood to encompass parents who are not
genetically related, or are single, we argue that parental orders should be extended to more than
two people.147 If a child’s welfare is to be at the centre of any law reform, it should be
acknowledged that surrogacy potentially involves more than two people with a claim to

142 For more on this point see Donna Dickenson’s work where she explores the two contrasting concepts of exploitation and
choice in D Dickenson, ‘Exploitation and Choice in the Global Egg Trade’ in M Goodwin (eds), The Global Body Market:
Altruism’s Limits (Cambridge University Press, 2013).
143 Re G (Children) (Residence: Same-sex Parent) [2006] UKHL 43, [2006] 1 WLR 2305, at para [34].
144 The Surrogacy UK Working Group on Surrogacy Law Reform survey found overwhelmingly that surrogates do not see
themselves as mothers. See also S Imrie and V Jadva, ‘The long-term experiences of surrogates: relationships and contact
with surrogacy families in genetic and gestational surrogacy arrangements’ (2014) Reprod Biomed Online 424.
145 A Pande, ‘ “It may be her eggs but it’s my blood”: Surrogates and everyday forms of kinship in India’ (2009) 32
Qualitative Sociology 379.
146 M Deckha, ‘Situating Canada’s Commercial Surrogacy Ban in a Transnational Context: A Postcolonial Feminist Call for
Legalization and Public Funding’ (2016) 61(1) McGill Law Journal 31.
147 A substantial body of literature has emerged on how assisted reproduction has fragmented parenthood and exploration of
the idea of recognising multiple parents through law. See L Smith, ‘Tangling the web of legal parenthood: legal responses
to the use of known donors in lesbian parenting arrangements’ (2013) 33 Legal Studies 355; R Leckey, ‘Two Mothers in
Law and Fact’ (2013) 21 Feminist Legal Studies 1; R Leckey, ‘Law Reform, Lesbian Parenting, and the Reflective Claim’
(2011) 20 Social & Legal Studies 331; N Bala, ‘The evolving Canadian definition of the family: Towards a pluralistic and
functional approach’ (1994) 8 International Journal of Law, Policy, and the Family 293; J Bridgeman, H Keating and
C Lind (eds), Responsibility, Law and the Family (Ashgate, 2008). R Collier and S Sheldon, Fragmenting Fatherhood: A
Socio-Legal Study (Hart Publishing, 2008); A Diduck, ‘ “If only we can find the appropriate terms to use the issue will be
solved”: Law, identity and parenthood’ [2007] CFLQ 458.
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The regulation of surrogacy in the United Kingdom 185

parenthood. Potentially, more than two individuals have been involved in the creation of the
child. If all parties (commissioning parents and surrogate) wish to play an active, close and
fulfilling role in the child’s life, arguably the law should acknowledge this. The current focus on
a ‘couple’ as being the only legitimate framework from which parenthood can be constructed,
as evidenced in section 54 of the 2008 Act, is outdated and simply fails to acknowledge the
many diverse family forms that exist.148 Canada offers an alternative example of a legal
framework, which recognises more than two parents.149 The British Columbia (BC) Family
Law Act (2011) has made it possible for a child to have more than two parents where ART is
used to conceive the child. In the context of surrogacy and donor conception, section 30(1)
stipulates that the birth mother and donor(s) can be named as a parent alongside the intended
parent or parents.150 Importantly, a condition to there being more than two legal parents is a
pre-conception agreement among all of the prospective parents, something we will discuss next.
Whilst many surrogates do not see themselves as parents, if there was formal or legal
recognition and such ‘alternative’ families could be negotiated from the outset, it would be
interesting to see how many would appear. Legal recognition gives legitimacy to ties and can
create them.151

Surrogates wanting legal parenthood may be the extreme. Another approach, which would put
surrogacy on a par with other ARTs, is to recognise gestational links as we do genetic links.
There has been a recent move to widen access to information about one’s genetic origins.152
Underlying and accompanying this is the discourse of genetic relatedness, which asserts that
knowledge of genetic origins is fundamental to donor-conceived children.153 Yet gestational
links are not given such significance. With advances in our knowledge about epigenetics maybe
this is wrong and gestation is possibly not as distinct from genetics as we once thought. A
recent Irish case154 raised the question of what role gestation should take when ascribing
motherhood. An expert in that case outlined the role of epigenetics and the capacity of the
gestational environment to influence a child’s genetic make- up. If donor-conceived children
have a ‘right to know’ about their donors then perhaps surrogate children have a ‘right to
know’ about their surrogate. While in practice many children born through a surrogate are told
and contact is often maintained,155 perhaps there should be a ‘Register of Information’ as is
held by the Human Fertilisation and Embryology Authority for donor conceived children. This
would recognise and acknowledge the surrogate’s reproductive links. We thus argue that
eligibility for legal parenthood should be widened in recognition of the diversity of family
forms.

148 See G Douglas, ‘Parenthood: Commitment, Status and Rights’ in J Eekelaar (ed), Family Law in Britain and America in the
New Century (Brill Nijhoff, 2016), 91.
149 See: www.cbc.ca/news/canada/british-columbia/della-wolf-is-b-c-s-1st-child-with-3-parents-on-birth-certificate-1.2526584.
150 British Columbia Family Law Act [SBC 2011].
151 See J McCandless and S Sheldon, ‘Genetically Challenged: The Determination of Legal Parenthood in Assisted
Reproduction’ in T Freeman, S Graham, F Ebtehaj and M Richards (eds), Relatedness in Assisted Reproduction: Families,
Orgins and Identities 61 (Cambridge University Press, 2014); H Ragone, ‘Surrogate Motherhood’ in C Brettell and
C Sargent (eds), Gender in Cross-Cultural Perspective (Prentice Hall, 3rd edn, 2001).
152 Donor anonymity was removed for gamete donors in April 2005 following the Human Fertilisation and Embryology
Authority (Disclosure of Donor Information) Regulations 2004 (SI 2004/1511). Later encompassed within amended
disclosure provisions in s 24 of the Human Fertilisation and Embryology Act 2008. On donor anonymity see S Golombok,
‘Anonymity – or not – in the donation of gametes and embryos’ in S Day Sclater, F Ebtehaj, E Jackson and M Richards
(eds), Regulating Autonomy: Sex, Reproduction and Family (Hart Publishing, 2009), at p 223.
153 D Griffiths ‘The (Re)Production of the Genetically Related Body in Law, Technology and Culture: Mitochondria
Replacement Therapy’ (2016) 24 Health Care Analysis 3, 196–209. See also C Smart, ‘Family Secrets: Law and
Understandings of Openness in Everyday Relationships’ (2009) 38 Journal of Social Policy 551.
154 MR and DR v An tArd Chlaraitheoir and Others [2013] IEHC 91.
155 See footnote 53 above.
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186 Child and Family Law Quarterly, Vol 29, No 2, 2017

Conclusion
‘The time is opportune for a new Surrogacy Act.’156
This sentence is truer now than when Freeman first made the statement in 1999. Whilst
surrogacy may nowadays be more visible due to its use by celebrities and the fact it has become
a more socially acceptable means of achieving parenthood, the limitations of the legal position
with regard to surrogacy are clear. The legislation put in place over thirty-two years ago, with
its focus on banning commercialisation, is now out-dated and no longer reflects the realities of
practice. Surrogacy has not ‘withered on the vine’157 as the Surrogacy Review hoped for in
1984 when the Warnock Committee reported, and instead it has become an ‘acceptable
alternative’158 to other methods of alleviating infertility. The climate in which such legislation is
operating has altered dramatically since its enactment. We live in an age of the internet,
whereby the use of the world-wide web to facilitate private arrangements or international
surrogacy is fingertips away. Ad hoc piecemeal amendments made in 1990, 2008, and 2010
have served to saddle the law with confusion and incoherence. We have argued that the
anomalies generated by judicial decisions have intensified the case for reform.
It is important for all that legal parenthood is correctly attributed and that the current
restrictions on who is eligible for a parental order are removed, thus allowing single individuals
or indeed more than two to apply for parental status. We illustrated how the requirement that
an application is made within six months is arbitrary, with judges having to bend this
requirement so as to achieve justice in individual cases. The mandate that one of the applicants
be genetically linked to the child is out of sync with other areas of law and should be removed.
In the absence of workable regulation people will continue to resort to do-it-yourself surrogacy
arrangements;159 they will continue to evade the payment ban in the UK and enter into
international surrogacy arrangements in countries that have well established commercial
surrogacy agencies, before later attempting to return to the UK with the child, who may be
marooned ‘stateless and parentless’.160 Until such time, Theis J argued: ‘There’s a ticking legal
time bomb that might arise later on through [the parents’] deaths, testamentary [inheritance]
issues and through parents splitting up – or even simply if passports need to be renewed’.161 If
the state is to protect the child’s long-term welfare needs, there has to be ‘legislative reform to
provide a legally supported framework’.162
We propose that sensitive and sensible reform could be achieved by a pre-conception
framework and, more controversially, we have argued that moderate payment should be
allowed. As Warnock, Brazier and Golombok recently stated: ‘The UK has regulated surrogacy
arrangements for thirty years and many other countries have, in that time, modelled similar
laws on ours’.163 If the UK is continue to lead the world with its regulation of these alternate
ways of founding a family such as surrogacy, it needs to be in line with modern social realties
and reform is now long overdue.

156 M Freeman, ‘Does Surrogacy Have a Future After Brazier?’ (1999) 7 Medical Law Review 1, at p 20.
157 The Surrogacy Review, see footnote 12 above, para 3.44.
158 Ibid, para 4.7.
159 A Alghrani, ‘Surrogacy: “A Cautionary Tale”: Re T (A Child) (Surrogacy: Residence Order) [2011] EWHC 33 (Fam)’
(2012) 20(4) Medical Law Review 631.
160 Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam), [2009] 1 FLR 733.
161 Dame Lucy Theis in the context of those who have founded a family via surrogacy but have not applied for a parental
order – ‘Unregistered surrogate-born children creating “legal time-bomb”, judge warns’ Guardian, 18 May 2015:
www.theguardian.com/lifeandstyle/2015/may/18/unregistered-surrogate-born-children-creating-legal-timebomb-judge-
warns (last accessed 16 March 2017).
162 Ibid.
163 M Warnock, M Brazier and S Golombok in the foreword to Surrogacy in the UK: Myth Busting and Reform (November
2015): www.kent.ac.uk/law/research/projects/current/surrogacy/Surrogacy%20in%20the%20UK%20Report%20
FINAL.pdf (last accessed 2 March 2017), 64 at p 5.