Fertility, Surrogacy and Modern Families: Is the Law Keeping Up?  

Families can be created in more ways than ever before. Fertility treatment, donor conception and surrogacy are now part of many people’s paths to parenthood – including same-sex couples, single parents by choice and people choosing to become parents later in life, as well as couples struggling to conceive. But as modern family structures have evolved rapidly, some people are asking whether the laws governing parenthood, fertility treatment and surrogacy are evolving quickly enough alongside them.  

How ideas of parenthood have changed  

For intended parents (people who are planning to raise a child through surrogacy), surrogates and donor-conceived children, modern family structures can sometimes create legal uncertainty at what is already a deeply emotional time. Advances in fertility treatment have created new possibilities not only for couples who have had difficulty conceiving, but also for same-sex couples, single parents, intended parents using donor eggs or sperm, and people making surrogacy arrangements in the UK or overseas.  

A child may now have a biological parent (someone with a genetic connection to the child), a gestational parent who carries the pregnancy, legal parents recognised by law and intended parents who plan to raise the child. In many situations, these roles belong to the same person. In others, they do not – and understanding the difference matters. This distinction between biological, gestational and legal parenthood sits at the heart of many modern fertility and surrogacy arrangements, and is one of the reasons why legal advice is so important.  

Understanding how surrogacy and fertility law in the UK currently works can help families feel more informed, protected and prepared for the future.  

How does surrogacy law work in the UK?  

UK surrogacy law often surprises intended parents because legal parenthood does not automatically reflect biology or intention. Under current UK law, specifically under the Human Fertilisation and Embryology Act 2008, the surrogate is recognised as the legal mother when the child is born – even if she has no genetic connection to the child. If the surrogate is married or in a civil partnership, their spouse or civil partner will also generally be treated as the child’s second legal parent at birth – unless they did not consent to the treatment.  

This applies equally to same-sex couples. Where the surrogate is in a civil partnership with another woman, that partner may also automatically acquire legal parenthood at birth – a detail that can catch same-sex intended parents off guard, when they realise the legal position does not yet reflect their role in the child’s life.  

This means intended parents are not automatically recognised as the child’s legal parents at birth. Instead, they typically need to apply for a Parental Order through the Family Court after the child is born. These Parental Orders are a key feature of the current UK surrogacy framework and it transfers legal parenthood from the surrogate to the intended parent or parents. It also gives the intended parents full parental responsibility for the child.  

Without a Parental Order, intended parents may face difficulties making important decisions relating to healthcare, education, travel, inheritance and wider legal matters involving their child. This is one of the reasons why early legal advice is so important in surrogacy arrangements.  

Why are Parental Orders still required?  

This is one of the biggest questions many people ask when exploring surrogacy. For intended parents, it can feel confusing that they are not immediately recognised as the legal parents of a child they planned for, may be genetically related to and fully intend to raise.  

Current UK surrogacy law was largely shaped around older ideas of family structure and parenthood – ideas that predate the range of arrangements now available to people. Many legal professionals, families and campaigners argue that aspects of the existing framework no longer reflect how families are actually created today and that there is a disconnect between legal recognition and the reality of modern family life. Questions around same-sex parenting rights have also become increasingly important as family structures have evolved.  

The Law Commission of England and Wales and the Scottish Law Commission have both recommended reforms to modernise surrogacy law in the UK, including proposals that could allow intended parents in approved arrangements to become the child’s legal parents from birth. At the time of writing, however, the current legal framework remains in place.  

International surrogacy can create additional complexity  

Some intended parents pursue surrogacy arrangements overseas for a variety of personal, medical or practical reasons. However, international surrogacy can create additional legal and immigration issues, particularly when different countries have very different approaches to legal parenthood and surrogacy arrangements.  

For example, a child who is legally recognised as belonging to the intended parents in the country where they are born may not automatically be recognised in the same way under UK law. Resolving those differences can take time and careful legal planning.  

Families may need to consider:

• citizenship and nationality    
• passports and travel documentation       
• immigration requirements      
• how UK courts will recognise overseas arrangements 
• differences between UK law and the law of the country where the child is born  

It is a common assumption that an overseas birth certificate or legal agreement will automatically be recognised in the UK – but as the Foreign, Commonwealth & Development Office’s guidance on surrogacy overseas makes clear, this is not the case. The Court in England and Wales will not treat a surrogacy agreement as a legally binding or effective document, even if it would treated as such in the country where it was entered into. Discovering that late in the process can create significant difficulties.  

Fertility treatment is raising new legal questions  

IVF and other developments in fertility treatment continue to create important legal and ethical questions around parenthood, identity and future family relationships. Questions can arise long before a child is born. For example, people may need to consider who can make decisions about stored embryos, what happens if circumstances change and how future information about biological origins may be shared with children. These are often deeply personal decisions, but they can also have important legal implications. For many people, IVF is the starting point for a surrogacy arrangement or donor conception journey. These are just some of the IVF legal considerations that intended parents and families may need to think about:

• how donor conception information is recorded
• future access to biological information
• embryo storage and consent
• co-parenting arrangements
• the legal status of intended parents
• future contact between donor-conceived children and donors  

Many donor-conceived adults have spoken publicly about the importance of understanding their genetic origins, and conversations around openness and transparency continue to affect how families approach donor conception today. Many parents now place greater importance on children understanding their origins in a way that is age-appropriate and sensitively handled, particularly where donor conception or surrogacy forms part of their family story.  

For donor-conceived children, the HFEA (Human Fertilisation & Embryology Authority) provides guidance on accessing information about donors, including what information can be requested and when. Knowing ‘where they came from’ can become an increasingly important part of a child’s identity as they grow older.  

Why legal clarity matters for children as well as parents 

When people are focused on fertility treatment or are in the midst of an emotional journey towards parenthood, legal issues can sometimes feel secondary. However, legal clarity can provide important reassurance for everyone involved – not least the children who will be born.  

For children, legal certainty means they know that the people caring for them are recognised as their parents and are able to make decisions on their behalf.  

For parents, it provides confidence that their legal position reflects the reality of their family life. Clear legal arrangements can help avoid uncertainty around parental responsibility, medical decisions, inheritance rights, nationality and long-term family stability.  

For many families, legal advice is not simply about paperwork. It is about creating security, clarity and confidence for the future.  

Our Surrogacy expert, Eleanor Tanner shares; “Surrogacy is opening the door to parenthood for so many people who may not have previously had the opportunity to become parents, which is a wonderful thing to see. It is important that intended parents are well informed before embarking on their surrogacy journey to ensure that, once their baby is born, they are fully equipped to take the necessary legal steps to protect the family life they have envisioned.”    

What does reform look like?  

Surrogacy reform continues to attract significant public and legal attention in the UK. Many legal professionals, campaigners and families believe the current framework no longer fully reflects the realities of modern parenthood. At the heart of many reform discussions is a simple question: how can the law continue to protect children while better reflecting the realities of modern family creation?  

Recent recommendations from the Law Commission have proposed a more modern pathway for surrogacy arrangements, with greater safeguards and earlier legal recognition for intended parents in certain situations. You can follow the progress of the Law Commission’s report and proposed draft legislation on their website and they also have an FAQ document. These recommendations form part of the wider discussion around surrogacy reform in the UK. Meanwhile the current law remains in place. Each family’s circumstances will be different, so seeking advice that reflects your specific situation is important.  

Receiving advice early can make the process feel clearer  

Surrogacy and fertility law can feel emotionally and legally overwhelming, particularly when arrangements involve multiple people, complex family structures or perhaps international elements. Seeking specialist legal advice early helps families understand how legal parenthood works and what steps may be required after birth. It should also help to clarify how fertility treatment decisions may affect legal rights and whether international or immigration advice may be needed alongside.  

Every path to parenthood is different. For many families, clear legal guidance can provide real reassurance during a process that is both complex and deeply personal.  

The family law team at K J Smith Solicitors advises clients on a wide range of fertility and modern parenthood matters, including surrogacy, Parental Orders and international arrangements. Through our ecosystem of care, we also work alongside fertility specialists, counsellors and other professionals who can support families throughout their journey to parenthood.  

If you have questions about surrogacy, fertility treatment or legal parenthood and would like to understand your options, you can arrange a free 45-minute consultation with our family law team.