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

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 requirements, such as parental orders only being available to couples, are discriminatory and violate the individual’s right to respect for theirprivate 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.