Surrogacy Agreements

This guide is general legal information on a surrogacy agreement for England and Wales. It does not replace tailored advice. Surrogacy cases can involve significant additional issues where there is an international element, donor conception, a surrogate who is married or civil partnered, disputed consent, non-standard payments, or uncertainty about domicile, nationality or immigration.

The central point is that a written surrogacy agreement does not decide legal parenthood. The law provides that the surrogate is the legal mother at birth. If she is married or in a civil partnership, her spouse or civil partner will normally be the other legal parent at birth where they consented to the treatment. The exact position can depend on the facts and clinic consents.

A parental order transfers legal parenthood from the surrogate and any other legal parent to the intended parent(s). The main route is section 54 of the Human Fertilisation and Embryology Act 2008 for two applicants; section 54A provides a route for one applicant. The court determines the outcome under the legislation—not the agreement.

Parties and status

• Full names and contact details of intended parent(s), surrogate and, where relevant, the surrogate’s spouse/civil partner.
• Relationship and marital/civil-partnership status, including the status at the anticipated time of conception.
• Whether the arrangement is gestational/host or traditional/straight; the intended gamete and donor arrangements.
• Clinic, counselling and support arrangements; confirmation that independent legal advice has been obtained or offered.
• A clear statement that the agreement is not legally binding and cannot override clinical consent, parental-order requirements or welfare.

Treatment, pregnancy and birth

• Planned treatment route and communication around treatment, always subject to the surrogate’s informed consent and clinical advice.
• Appointments, confidentiality, attendance at scans or birth, and how medical information may be shared.
• A birth-plan process, hospital practicalities, new-born care and feeding arrangements, subject to hospital policy and continuing consent.
• Contingencies: unsuccessful treatment, miscarriage, multiple pregnancy, medical complications, prematurity/NICU care, loss, relationship breakdown or changed circumstances.
• A non-binding approach to future contact and age-appropriate openness with the child about their origins.

Expenses

The agreement should identify anticipated reasonable expenses, rather than a fee for carrying a child. The Government’s pathway gives examples courts have generally accepted, including loss of earnings, relevant childcare, travel and accommodation, maternity clothing, additional pregnancy-related support, and treatment/pregnancy-related incidentals. Reasonableness remains fact-specific and all payments must be disclosed to the court.

• Use a schedule with expense category, amount, date, payee, payment method and evidence/receipt.
• Keep bank records, invoices, travel evidence, wage evidence for loss of earnings and a running total.
• Record how unexpected expenses will be discussed and documented.
• Avoid “fee”, “reward”, “success payment”, “retainer” and similar wording.

Legal-parenthood plan

• Record the intended parent(s)’ plan to apply for a parental order after birth.
• Acknowledge that the surrogate and any other legal parent must give free and unconditional consent, unless a statutory exception applies.
• Do not treat pre-birth consent as legally effective: the surrogate’s consent cannot be effective if given less than six weeks after birth.
• Plan for the parental-order paperwork, the parental-order reporter process and preservation of clinic, expenses and birth documentation.

The child’s welfare is central. Do not assume that the court process will be routine where there are unclear payments, disputed consent, international facts, uncertain domicile or gaps in the evidence.

1. Before treatment: obtain separate specialist advice for the intended parent(s) and the surrogate; check parental-order eligibility and legal-parentage risks.
2. Prepare the agreement: record intentions, build a detailed expenses schedule and agree how records will be retained.
3. At the clinic: ensure all treatment and legal-parenthood forms are accurate. A private agreement does not replace clinic consents.
4. During pregnancy: retain receipts and payment evidence, review practical arrangements and develop a birth plan with clinicians.
5. After birth: in England and Wales, parental-order applicants usually use Form C51. Check the current GOV.UK forms, supporting-document requirements and court fee before filing.
6. During proceedings: cooperate fully with the court-appointed parental-order reporter and provide candid evidence about payments, consent, care of the child, relationship status and domicile.
7. After the order: update wills, guardianship arrangements, medical information and any long-term contact/open-identity plans as appropriate.

The Surrogacy Arrangements Act 1985 regulates commercial activity around surrogacy. Government guidance states that it is an offence to advertise that a person is seeking a surrogate or willing to act as one, and commercial negotiation/facilitation is restricted, subject to statutory exceptions including some non-profit activity. Legal advice may be given, but professional involvement must not cross into prohibited paid negotiation. Use an established non-profit organisation and HFEA-licensed clinic where appropriate, and obtain independent specialist advice.

International arrangements should never be treated as an extension of the domestic process. A foreign birth certificate or foreign court order may not resolve UK legal parenthood, nationality, immigration, passport/travel rights, domicile, payment scrutiny or recognition in England and Wales. Obtain specialist family, immigration and nationality advice before conception, travel or payment of funds.

• Describing the agreement as “binding” or promising it guarantees legal parenthood.
• Using pre-birth consent as if it can guarantee a parental order.
• Paying a lump sum with no breakdown, receipts or contemporaneous records.
• Assuming genetic connection alone makes an intended parent a legal parent at birth.
• Ignoring the legal consequences of a surrogate’s marriage/civil partnership or clinic treatment forms.
• Treating pregnancy or medical choices as matters controlled by intended parent(s).
• Using commercial intermediaries or social-media advertising without checking the statutory restrictions.
• Leaving specialist advice until after conception or birth.

The Law Commission of England and Wales  published reform recommendations and draft legislation in March 2023. The recommended pathway would have changed when intended parents could become legal parents. It is not current law. The Law Commission records that the Government said in April 2025 that it could not prioritise reform and did not intend to take the recommendations forward at that time. The existing parental-order system therefore remains the governing framework.

Are surrogacy agreements legal in the UK?

They can be made, but they are not enforceable in law. They are a record of intentions, not a contract that can compel performance.

Can a surrogate change her mind?

The agreement cannot compel a handover of the child or consent to a parental order. Careful matching, counselling, communication and independent advice are therefore essential.

Does a gestational surrogate have legal status if the child is not genetically related to her?

Yes. The woman who gives birth is the legal mother at birth, including in gestational/host surrogacy.

Do intended parents need a parental order even if there is an agreement?

Normally yes. The agreement does not transfer legal parenthood. A parental order is the usual route if its statutory requirements are met.

What if neither intended parent is genetically related to the child?

A parental order is not normally available; adoption is normally the route to legal parenthood. Obtain specialist advice before treatment.

Can a single intended parent apply?

Yes. Section 54A provides a sole-applicant route, provided the statutory conditions are satisfied.

Can expenses include lost earnings?

Loss of earnings is identified in Government guidance as an example courts have generally accepted, but each case is fact-specific. Maintain full evidence and disclose all payments.

What is the normal parental-order deadline?

The statutory starting point is an application within six months beginning with birth. Seek urgent advice where the deadline may be missed.

Has the law already changed under the Law Commission proposals?

No. The proposals are not in force; the current parental-order framework continues to apply.

Understand UK surrogacy agreements, legal parenthood at birth, reasonable expenses and parental orders. Reach out now to begin creating a path forward for your family. Contact Kabir Family Law today on 0330 094 5880 to arrange your free consultation or book a time that suits you. Our family lawyers in Coventry as well across York, Nottingham, Cardiff, Northampton, Oxford & London work around the clock and will be able to provide you with the advice and you need at a time to suit your needs.