The government recently confirmed, via a letter from Baroness Merron, parliamentary under-secretary for patient safety, women’s health and mental health, to Sir Peter Fraser, chair of the Law Commission of England and Wales, that it will not be prioritising surrogacy law reform or putting forward the joint commissions’ legislative proposals. Instead, it will publish a response ‘as time allows’ to ‘look to consider this issue in the future’.
This is a sadly all-too predictable and deeply unsatisfactory response. Kicking this issue into the long grass – the government’s full response is already 14 months overdue – is simply not good enough. Year on year, more children are born via surrogacy to British parents, both in the UK and abroad, and those numbers are unlikely to fall. Indeed, the government accepts that surrogacy is a legitimate form of family building and the Law Commission of England and Wales and the Scottish Law Commission were tasked with considering law reform on that basis.
The law commissions have done the hard work. There is a bill ready to be debated. ‘Lack of parliamentary time’ just does not ring true. And while the government hesitates, anti-surrogacy groups gain traction and conservative governments in Europe take steps to criminalise their citizens who undertake surrogacy abroad.
Recently, Baroness Merron confirmed in response to a (deliberately framed anti-surrogacy) question from Baroness Manzoor that ‘the government has no plans to restrict international travel for surrogacy’. That is something at least. But it is not the case in many countries.
Surrogacy has been illegal in Spain since 2006. However, this has not stopped Spaniards from becoming parents through surrogacy by entering into surrogacy agreements abroad and seeking to have their children registered in the Spanish Civil Registry, relying on the parentage orders of the foreign jurisdiction, with the registration then made in the children’s best interests. However, following a Spanish Supreme Court ruling in December 2024, where this type of registration was refused, it was announced on 1 May that the Official State Gazette will publish an instruction that will enable the Spanish authorities to prevent such registration, closing this ‘loophole’. Spanish intended parents will now likely need to start a new court application when they return to Spain, where biological parentage will be recognised (usually for the biological father), with the other parent required to adopt.
The Spanish authorities do not intend to go as far as the Italian authorities, however. Last December the latter enacted a law that criminalised Italian citizens who engage in overseas surrogacy, punishable with significant fines and up to two years in prison.
Other jurisdictions have sought to impose extra-territorial criminal sanctions in order to deter their citizens from engaging in surrogacy abroad, such as Queensland, Australian Capital Territory and New South Wales in Australia, and Hong Kong. No person has yet been prosecuted, but the number of surrogate-born children continues to grow.
In the very recent case of Lloyd & Compton in Australia, the Queensland director of public prosecutions was asked to investigate intended parents who engaged in commercial surrogacy overseas and who swore an affidavit confirming this illegal act. If this couple are ultimately prosecuted, they risk three years in prison.
What, ultimately, is the point of these laws? Ostensibly, banning surrogacy is to protect surrogates from exploitation, while the criminalisation of intended parents who seek to circumvent local laws by going abroad is to deter those intended parents from exploiting surrogates overseas. Rather than stopping surrogacy, the laws drive intended parents to make decisions, such as choosing jurisdictions that do not have surrogacy laws, that could affect the legal status and nationality of the child and potentially put parents in prison. This is not in any child’s best interests.
There can be no greater driving force than the desire to procreate – to have a family of one’s own. For some, surrogacy is not plan A and sometimes follows years of infertility and trauma; for others, surrogacy will be their only way to have a biologically related child. Many would argue that no one has the right to a child and that engaging in surrogacy is reproductive exploitation. Others, however, would counter that everyone has the right to found a family and, with a properly regulated system, surrogacy can be an ethical and fully informed method of family building.
The answer to protecting surrogates, children and intended parents must be a clear and robust legal framework which puts the welfare of the child at its core. Our current surrogacy laws are simply not fit for purpose.
The application for a Parental Order, which is required by British intended parents – whether they engage in surrogacy at home or abroad – is a slow process where the surrogate (and any spouse) remain the legal parent(s) with parental responsibility until such time as the parental order is made, typically between eight and 12 months post-birth. During this time, the child is in legal limbo; their carers have no legal rights to make decisions for them, even medical decisions. This limbo is one of the factors that drives British intended parents overseas: while those who can afford it can benefit from the US system, those who cannot look to cheaper and less-regulated jurisdictions where problems arise.
The government must grapple with this issue now. Start the debate; consider any amendments; do something. British surrogacy-born children – and all surrogacy-born children – deserve to have their rights recognised.
Natalie Sutherland is partner and head of the modern families department at Burgess Mee, London
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