Recommendations for Reforms to Surrogacy Law: Why it Matters For, and Beyond, Surrogacy

There have long been calls for reform to surrogacy law – and the Law Commissions’ recent project represented a significant step towards meaningful change. However, the regulation of surrogacy cannot be considered in isolation and inevitably raises questions about other reproductive technologies. A symposium, funded by Broadly Conceived, explored the broader implications of the Law Commissions’ recommendations relating to surrogacy. In this blog series, each presenter from the symposium reflects on the impact of these recommendations on current (and future) reproductive practices.

Dr Lottie Park-Morton, University of Gloucestershire.

Key words: surrogacy, reproduction, law reform, family

Image credit: Google Gemini

Introduction

Surrogacy, when a woman carries and gives birth with the intention for another individual or couple to become the parent(s) of the child, has been regulated in England and Wales since 1985 and has steadily increased in prevalence in the preceding 30 years. The practice of surrogacy, and legal responses to it, remains globally contentious, but in the UK surrogacy is treated as a legitimate form of family formation.

There have long been calls for reform to surrogacy law – and the Law Commissions’ (relatively) recent project represented a significant step towards meaningful change. The regulation of surrogacy, however, necessarily invokes questions about, and comparisons with, other forms of reproductive technologies and ways to form a family. With this in mind, a symposium funded by Broadly Conceived was held at the University of Greenwich in June 2025 exploring the impact that the Law Commissions’ recommendations on surrogacy may have on these other technologies.

In this blog series, each expert that presented at the symposium will provide insights into what impact the recommendations relating to surrogacy may have on these reproductive technologies, with a final post examining emerging themes across the different technologies. This first post in this series provides a brief overview of the context of the project and key recommendations made by the Law Commissions, considering how surrogacy is – or should be – contextualised with other means of family formation.

The Law Commissions’ Project of Law Reform

Surrogacy was listed on the 13^th Programme of Law Reform in 2017, receiving the highest level of public support amongst the listed projects. Following a 2019 consultation paper and multiple delays, the Final Report and draft bill were published in March 2023. The recommendations reflect extensive stakeholder engagement, including responses from groups opposed to surrogacy. The Law Commissions did acknowledge these anti-surrogacy views throughout the Final Report – but were clear about their mandate: the Government is of the view that surrogacy is a legitimate way in which to build a family, and therefore the Law Commissions’ remit was not to assess whether surrogacy should be allowed or not – but rather to consider how best to regulate the practice. The question of ‘whether’ or ‘how’ to regulate is significant, particularly considering emerging reproductive technologies that are not yet in practice, and this will be examined in subsequent posts within this series.

Although the Department of Health and Social Care acknowledged the Final Report in November 2023 and April 2025, limited Parliamentary time was cited for why the draft bill could not be progressed. A full response was expected within 12 months of the Final Report but is yet to be received. Therefore, there is no suggestion that the draft bill will come to be legislatively scrutinised in the immediate future. Nonetheless, the Final Report remains significant: it was developed with many consultees and stakeholders and therefore has the potential to be well supported if taken forward.

Why Surrogacy Law Reform Matters Beyond Surrogacy

In the Final Report, the Law Commissions stated:

“The points of similarity between surrogacy, assisted reproduction and adoption mean that when considering surrogacy law, we have often found it useful to consider what happens in the case of assisted reproduction or adoption. The differences between them mean that ultimately surrogacy must be viewed through its own lens.” (p. 7)

The assertion that surrogacy must be viewed through its own lens is legitimate. Surrogacy is distinguished from adoption and assisted reproduction by two critical features: the pre-conception intent of the intended parents (IPs) and surrogate, and the deliberate separation of gestation from legal parenthood. These elements make surrogacy a unique mode of family formation, necessitating a distinct legal framework.

Nonetheless, it cannot be denied that any changes to the law on surrogacy would have implications beyond surrogacy itself. The Final Report does more than make recommendations relating to the regulation of surrogacy: it implicitly reshapes understandings of parenthood and family, and the role of professional and regulatory bodies in family formation. In doing so, the recommendations would be felt beyond surrogacy, implicating wider reproductive technologies and practices.

For instance, recommendations concerning origin information are deeply entwined with donor conception practices; the proposed role of a regulator resonates with ongoing debates around oversight in egg freezing and fertility services; and the treatment of gestation and its link to parenthood invites reflection on emerging technologies such as uterus transplants and artificial placentas.

Therefore, whilst surrogacy may require its own legal lens, the view through that lens reveals a wider landscape of interconnected reproductive practices. Subsequent posts in this series will explore these intersections in greater detail.

Key Recommendations and Their Broader Relevance

The Final Report’s recommendations can be categorised into three broad areas: the legal framework and parental status; safeguards and regulation; and international and practical considerations. While the latter is not examined here, it is worth noting that the limited recommendations relating to international surrogacy has attracted criticism for failing to deal with some of the most pertinent issues with the practice: it is unlikely that any law reform in the UK would be enough to deter the practice of international surrogacy entirely, thus meaning issues posed when IPs cross border would persist. As wider reproductive tourism continues to increase, there are broader questions to be addressed relating to conflicting laws and recognition agreements.

Legal Framework and Parenthood

One of the main recommendations is the creation of a new pathway to parenthood. Currently, the surrogate is the legal parent at birth, meaning IPs must obtain a post-birth parental order through the court. Under the recommended pathway, IPs would be able to become legal parents of the child from birth, subject to eligibility criteria and pre-conception checks. The IPs’ legal parental status would remain subject to the surrogate’s right to withdraw consent, either before birth or up to six weeks after: given that the new pathway is meant to create more certainty for parties, this ability to withdraw consent has been criticised.

Some individuals would not be eligible for the new pathway – such as those who do not meet the pre-conception requirements or undergo an informal or international arrangement – meaning a form of judicial order would remain necessary. The recommendations are to retain, but alter, the existing requirements for a parental order. Many requirements would remain unchanged, although some differences would include requiring origin information and removing references to payments made to the surrogate.  

The introduction of the new pathway would have implications in other reproductive contexts: prioritising pre-conception intent in the determination of parenthood challenges traditional notions of who a parent is, and this could support those who seek to engage in other developing reproductive practices.

Safeguards and Regulation

The Final Report recommends:

• The introduction of Regulated Surrogacy Organisations (RSO), overseen by the Human Fertilisation and Embryology Authority (HFEA). The RSOs would act as gatekeepers to accessing the new pathway, checking that pre-conception checks and requirements have been completed. There have been criticisms of the additional burden this would put on surrogacy organisations and the HFEA. Placing the HFEA as regulator echoes regulatory structures in fertility treatment and egg freezing, necessitating reflection on the HFEA’s current statutory powers, remit and practices.

• Implementation of pre-conception safeguards, to ensure that there is proper screening and support prior to entering into the agreement. Many of these already take place, for surrogacy and beyond, but the recommendations would put them on a statutory footing. Such safeguards would include a pre-conception assessment of the child’s welfare, independent legal advice, implications counselling, medical screening, and criminal record checks.

• There would be permitted types of payments (such as lost earnings and wellbeing costs) which would be enforceable by the surrogate if not paid. If the IPs made a false statutory declaration as to the payments that had been made, a criminal offence would be committed, and RSOs could face regulatory sanctions if they breach rules relating to payments. The Law Commissions also suggested that the Government may wish to impose a scheme of civil penalties if prohibited payments are made. Defining permitted payments and penalising prohibited ones could have implications on allowable compensation in other reproductive contexts, necessitating a consistent approach.

• The introduction of a surrogacy register would enable origin information to be stored centrally and made accessible to the surrogate-born child. This information would include the IPs’ and surrogate’s identity and would detail whether donor gametes were used (then linked to the HFEA Register for Donor Conception). This recommendation reinforces the significance attached to transparency and identity in other reproductive technologies.

Whilst these recommendations were made specifically for the practice and regulation of surrogacy, it is apparent that the implication of these could extend beyond surrogacy, invoking broader questions around parental status, regulation, and limitations on certain practices.

Conclusion

There are currently no signs that Parliament will consider the recommendations and draft bill. However, should this issue reach the legislative agenda, the Law Commissions’ work will likely be central to the debate. It is therefore vital to understand the implications of the Final Report — not only for surrogacy, but for other reproductive contexts. Even a broad overview of the recommendations reveals that surrogacy cannot be viewed or regulated in isolation. The forthcoming posts in this series will explore how these recommendations interact with, and impact, other reproductive practices and technologies.