Automatically recognising international surrogacy arrangements in the Family Court raises legal, ethical, and policy concerns. Such recognition may compromise safeguards against exploitative practices and undermine the rule of law by enabling affluent individuals to circumvent UK legal restrictions. The Family Court should therefore retain case-by-case scrutiny. A regulated system of commercial surrogacy within the UK may offer a more coherent and ethically preferable alternative.
The legal framework in England & Wales
Surrogacy in England and Wales is regulated by the Human Fertilisation and Embryology Act 2008 (HFEA 2008), under which the surrogate is recognised as the child’s legal mother at birth. Legal parenthood may be transferred through a parental order under s 54, granted at the court’s discretion. These orders are not automatic and require compliance with statutory criteria, including the child’s welfare and payment restrictions. As illustrated in RE: L (a minor) [2010] EWHC 3146 (Fam), the framework does not permit automatic recognition of international arrangements. Instead, once the child is born and in the care of the intended parents, the court must retrospectively assess whether the arrangement complies with domestic legal standards and public policy before granting a parental order—see RE S (parental order) [2009] EWHC 2977 (Fam).
Exploitation & upholding legal safeguards
Automatic recognition of international arrangements risks legitimising practices that would be unlawful under UK law. Surrogacy destinations such as the United States, Ukraine (prior to conflict), or Georgia permit commercial arrangements which are antithetical to the UK’s prohibition of commercial surrogacy. As Sir James Munby noted in Re X (A Child) (surrogacy: time limit) [2014] EWHC 3135 (Fam), while flexibility exists in favour of child welfare, it should not extend to arrangements involving exploitative practices.
The European Parliament, in a 2014 non-binding resolution, condemned surrogacy for reducing women to commodities. Similarly, Art 21 of the Council of Europe’s Convention on Human Rights and Biomedicine and Art 2(a) of the Optional Protocol to the UN Convention on the Rights of the Child warn against the commodification or trafficking of children and women. The UK could inadvertently endorse exploitative practices that undermine the dignity and autonomy of surrogates, especially in jurisdictions lacking legal protections.
The protective function of parental orders
Parental orders play a vital safeguarding role by requiring courts to scrutinise arrangements and ensure compliance with ethical and legal standards. Intended parents are encouraged to act responsibly by selecting reputable clinics and agencies abroad, precisely because they must demonstrate this in court. Removing this requirement would eliminate a key accountability mechanism.
The Nuffield Council on Bioethics has expressed concern that, without adequate oversight, international surrogacy can result in the exploitation of surrogates, particularly where there are no enforceable protections. Furthermore, the necessity to obtain a parental order exerts regulatory pressure on foreign agencies, particularly in the United States, to maintain higher standards. Without judicial scrutiny, standards may diminish, increasing the risk of harm to all parties.
Gaps in international law
A central issue is the absence of a binding international legal framework governing surrogacy. Unlike intercountry adoption, governed by the Hague Convention, surrogacy lacks harmonised standards. This legal vacuum allows for exploitation of cross-border inconsistencies, incentivising forum shopping and undermining coherent policy.
While the Hague Conference on Private International Law is exploring a potential convention on surrogacy, no consensus has been reached. The UK has a responsibility to uphold its domestic standards rather than recognise arrangements by default. Automatic recognition would not only create legal incoherence but risk legitimising practices that breach public policy.
Socioeconomic inequality & the rule of law
Automatic recognition disproportionately benefits the wealthy, effectively reserving legal parenthood through surrogacy to those who can afford international arrangements, undermining the rule of law. Commercial surrogacy in the United States can cost between $100,000 and $200,000. The current regime permits wealthier individuals to bypass domestic restrictions and later secure parental rights through the courts, while others remain bound by UK law.
This creates a two-tier system that violates the principle of the rule of law, which, as Lord Bingham stated, requires that laws apply equally to all. Automatic recognition would further entrench inequality by making legal outcomes dependent on financial capacity. In practice, UK surrogacy law already bends through retrospective parental orders. Removing judicial discretion would only deepen these disparities.
The welfare of the child
In parental order proceedings, the welfare of the child is the court’s paramount consideration. This principle is derived from s 1 of the Adoption and Children Act 2002 and is applied to through the Human Fertilisation and Embryology (Parental Orders) Regulations 2010 (SI 2010/986). However, as reaffirmed in Re H (anonymous surrogacy) [2025] EWHC 220 (Fam), which concerned a surrogacy arrangement from Nigeria, Sir Andrew McFarlane emphasised the need for caution to avoid endorsing exploitive practices. Although there is no statutory restriction on surrogacy from Nigeria, risks similar to those underlying the Special Restrictions on Adoptions from Abroad (Nigeria) Order 2021, including concerns about potential trafficking, justify close scrutiny under s 54(8).
Towards a domestic solution: regulated commercial surrogacy
Rather than reducing safeguards through automatic recognition, the UK should introduce a regulated system of domestic commercial surrogacy. This would provide a more ethically coherent and legally consistent alternative to international arrangements. Where s 54(8) HFEA 2008 is breached, parental orders are still granted if welfare justifies the outcome. As Mr Justice Hedley noted in Re L (a minor) [2010] EWHC 3146 (Fam), meaningful regulation must occur before arrangements are made. Domestic legislation would ensure oversight of providers and restrict access to ethical services. Licensing could embed safeguards from the outset, allowing legal parenthood to be granted at birth and avoiding post-birth uncertainty. Domestic regulation would reduce reliance on international jurisdictions with weak protections and better reflect the principles of fairness, public policy, and the Rule of Law.
Conclusion
The Family Court should not automatically recognise international surrogacy arrangements. Doing so would compromise legal safeguards, undermine public policy, and entrench socioeconomic inequality. In the absence of enforceable international standards, case-by-case judicial scrutiny remains necessary. A more coherent and equitable solution lies in legalising and regulating commercial surrogacy within the UK, ensuring ethical oversight, promoting equality before the law, and reducing reliance on exploitative international arrangements.
