The number of parental orders being granted in UK courts in relation to babies born via surrogacy have increased significantly in recent years. Around 500-600 orders are now being granted annually, according to available data.
With the number of applications rising sharply, the need for accurate, up to date, and transparent advice and information in relation to the legal implications, and complications, of this process is more important than ever. The Law Commission of England and Wales and the Scottish Legal Commission have in recent years reviewed the law in this area, and surrogacy reform remains an important and evolving topic. Here, our lawyer Lynsey Brown answers some questions our team are frequently asked, and explores some common misconceptions and pitfalls to be aware of throughout your surrogacy journey.
Table of Contents
- Are surrogacy agreements legally binding in the UK?
- Is it legal for me to pay a surrogate?
- Considerations When Your Child is Born Overseas
- Our surrogate is married but her spouse is on board with the arrangement. Will that mean that the spouse is not treated as the second legal parent when the baby is born?
- Our surrogate is not married. Can my partner or I be registered as the second legal parent on the birth certificate?
- Seek Further Advice on Surrogacy UK Laws Before Starting Your Journey
Are Surrogacy Agreements Legally Binding in the UK?
A question many people first ask at the start of their surrogacy journey is: is surrogacy legal in the UK? Yes, surrogacy is legal in the UK, but surrogacy agreements themselves are not legally binding and are not enforceable in UK courts.
This means that in surrogacy arrangements, currently, there is a large degree of trust required between the parties involved that each will follow through with what has been agreed. In the vast majority of cases, they do, however there is an element of risk that someone may change their minds at some point.
Notwithstanding the fact that they are not binding or enforceable, having a surrogacy agreement in writing may nevertheless assist parties in setting out clearly their respective intentions and expectations from the outset.
It is an offence for solicitors to be involved in the negotiation of a surrogacy contract or agreement for payment, however there are several surrogacy organisations and non-profit organisations in the UK who are able to assist with the preparation of written agreements. Working with a reputable surrogacy agency or one of the established surrogacy organisations can provide valuable support and guidance at this stage. We would always recommend seeking independent legal advice before entering into any surrogacy arrangements.
How Does Surrogacy Work in Scotland?
Another common question we receive during a surrogacy journey is: is it legal in the UK when it comes to paying a surrogate? Whilst surrogacy itself is permitted in UK law, commercial surrogacy is illegal and surrogacy in the UK must only take place on an altruistic surrogacy basis. However, it is a common misconception that no payments can be made whatsoever or that paying a surrogate is a criminal offence. The law permits intended parents to pay surrogates “reasonable expenses”.
Reasonable Expenses in Surrogacy
There is no statutory definition of what reasonable expenses comprise or include (or indeed, exclude), and so the court will assess each application on a case by case basis.
It is not a criminal offence to pay a surrogate more than reasonable expenses, but you would require to explain the situation to the court when applying for a Parental Order, and it will be for the judge or Sheriff to decide whether to authorise the payments made before they are able to consider whether to grant the Order.
Whilst intended parents should endeavour to ensure that they are not paying more than reasonable expenses to their surrogate, there is now a growing body of case law in which courts have retrospectively approved payments made to surrogates which exceeded what could be considered reasonable expenses.
The question of permitted expenses is an area in which the Law Commission of England and Wales and the Scottish Law Commission have recommended reform, and reform in relation to payments is likely to feature prominently in any future legislative changes in relation to surrogacy.
Considerations When Your Child is Born Overseas
My surrogate lives in another country and is giving birth abroad – will I be able to get a passport for my child to bring them back to the UK?
International surrogacy arrangements are increasingly common, and whilst it may be a good option for some families it can often give rise to added complications. One such complication is in relation to how to bring your baby home to the UK after the birth.
British nationality can be complex in international surrogacy arrangements, bearing in mind the fact that the surrogate is the child’s legal parent from birth until you can secure a Parental Order through the UK courts, and in some cases her spouse or civil partner may also be the second legal parent.
This means that in some cases, children born via international surrogacy may not be born with automatic British nationality, even if one or both intended parents are British. However, what you need to do will depend on your precise circumstances, and so early independent legal advice is vital, particularly when navigating the complexities of your surrogacy journey abroad.
My child is being born abroad through an anonymous surrogacy arrangement. Are there any risks to this?
There are many risks to this and you should seek legal advice as soon as possible from a solicitor specialising in surrogacy in the UK.
In 2025, the High Court in England dealt with two such cases, both of which involved anonymous surrogacy arrangements in Nigeria. The intended parents in both cases had no details about the surrogates’ identities and had never met the surrogates. This gave rise to very serious issues for the court, including:
A question as to whether the surrogates had agreed unconditionally to the making of the Parental Orders to transfer legal parentage to the intended parents, which is a mandatory requirement in UK law. If she cannot be found, because she is anonymous, it cannot be ascertained as to whether she consents at least 6 weeks after birth which is the UK’s applicable timeframe for validly-given consent;
Whether the surrogates were married, which would determine whether there was a second legal parent in Nigeria or not, and crucially who was therefore considered the child’s legal parent at birth;
Whether they were paid and if so for what expenses, and therefore whether any payments exceeded the “reasonable expenses” criteria; and finally
Serious public policy considerations as to whether the surrogate had been exploited in any way.
Ultimately, the Orders were granted in both cases, balancing the child’s welfare against the obvious issues with the applications. However getting to this end result was not without complication, or no doubt a lot of stress for all parties involved. There were immigration issues in relation to getting the babies back to the UK, and significant legal obstacles culminating in a series of hearings and directions from the courts, which adds cost, time and uncertainty of outcome.
There were severe warnings given by both judges in these cases about the issues which arise for the court where intended parents choose to use an anonymous surrogate, with anonymous surrogacy being described by one of the judges as a “legal timebomb”. In the more recent of the two 2025 cases, Judge Theis warned that anyone intentionally choosing anonymous surrogacy going forward, in light of the warnings in both of these cases, may ultimately be refused a parental order.
Is it possible to obtain a Parental Order for a child born via surrogacy if neither my partner nor I are biologically related to the child?
No, it is not possible to obtain a Parental Order if you have used both donated sperm and eggs, and there is therefore no genetic link between you or your partner and the child. The same would apply if you are undertaking a surrogacy journey as a single individual, and your sperm or eggs have not been used for the fertility treatment. A genetic link is one of the mandatory legal requirements under the UK legislation governing surrogacy to secure the post-birth Parental Order transferring legal parenthood.
It is, however, possible in practical terms to have a surrogate-born baby using donated sperm and eggs, although there may be some difficulties in finding a surrogate willing to act in such a situation, and also finding a fertility clinic prepared to offer the treatment.
However, if you are able to do so, other routes to securing your legal parentage of the child may be available, such as an Adoption Order. You should take early legal advice to discuss this alternative route and its potential complications.
What are the other mandatory eligibility criteria for the Parental Order Process?
A genetic link is only one of the mandatory legal requirements under UK surrogacy legislation required to secure the post-birth Parental Order, which is the order required to transfer legal parentage from the surrogate to the intended parent(s). The court application must be made within six months of the child’s birth, and at least one intended parent must be domiciled in the UK at the time of the application. It is also a requirement under the Human Fertilisation and Embryology Act 2008 that the intended parents are married, in a civil partnership, or in an enduring family relationship.
Given the strict eligibility criteria and timeframes involved, early specialist advice is strongly recommended. The Law Commission of England and Wales and the Scottish Legal Commission have proposed reforms to this court process which may in time make the parental order process more straightforward for intended parents.
Our surrogate is married but her spouse is on board with the arrangement. Will that mean that the spouse is not treated as the second legal parent when the baby is born?
In some ways counterintuitively where surrogacy in UK is concerned, if the surrogate’s spouse or civil partner “consents” to their wife undergoing the fertility treatment, he or she will be treated as the second legal parent at birth. It is only when they do not consent to their wife’s fertility treatment that they would not be considered the second legal parent.
If they do not consent, and assuming the treatment is taking place at a UK licenced clinic, there is a specific form the surrogate will sign to confirm this.
The fertility clinic plays an important role at this stage, as consent forms completed at the point of fertility treatment are often the key documents used to establish who is to be treated as the second legal parent.
Understanding the surrogacy process and who is considered the child’s legal parent from birth is one of the most important aspects of any surrogacy journey, and this question comes up frequently at various stages of the surrogacy process in both gestational surrogacy and traditional surrogacy arrangements
Seek Further Advice on Surrogacy UK Laws Before Starting Your Journey
These are just a handful of the questions our Surrogacy solicitors are asked, and a few of the common misconceptions or potential risks and complications which can arise in UK surrogacy cases. Surrogacy involves navigating a complex and evolving area of law, and the Law Commission of England and Wales and the Scottish Legal Commission have recommended significant surrogacy reform which may change the legal landscape in the years ahead.
Whilst an invaluable route to creating a family for many individuals and couples across the country, surrogacy laws in the UK mean the process can be complex and we would always recommend that intended parents and surrogates seek legal advice from a specialist as early as possible. If you are considering embarking on a surrogacy journey, please do not hesitate to contact our experienced team today.
If you are thinking about starting your surrogacy journey, Jones Whyte are here to provide expert legal advice for what can be a very complicated process. Call 0141 674 4357 or use the contact form to speak to an expert.
How Jones Whyte Can Help
Seeking legal advice is a crucial part of the surrogacy process. Our knowledgeable and compassionate surrogacy lawyers in Scotland are ready to guide you through each of the steps, ensuring you fully understand the process. They will provide you with confidence throughout your surrogacy journey.
Please note: This article is for general information purposes only and does not constitute legal advice. It should not be relied upon as a substitute for professional legal advice tailored to your specific circumstances. If you need advice on a legal matter, get in touch with our team.
