Surrogacy is a life-changing path to parenthood for many individuals and couples, including members of the LGBTQ+ community. In England and Wales, whilst surrogacy is legal, it is governed by complex laws.

What is Surrogacy?

Surrogacy is an arrangement where a woman (the surrogate) agrees to carry and give birth to a child for another person or couple (the intended parents). There are two types of surrogacy:

  • Traditional (or ‘straight’) surrogacy: the surrogate uses her own egg, making her the genetic mother.
  • Gestational (or ‘host’) surrogacy: the surrogate has no genetic link to the child; the embryo is created using the egg and sperm of the intended parents or donors.

Yes, surrogacy is legal, but commercial surrogacy is not. This means:

  • Surrogates cannot be paid for their services beyond reasonable expenses.
  • It is illegal to advertise that you’re looking for a surrogate or willing to act as one (although nonprofit organisations may facilitate matches).
  • Surrogacy agreements are not legally binding, even if both parties sign a written contract.

Surrogacy and LGBTQ+ Individuals: A Growing Path to Parenthood

The LGBTQ+ community is increasingly turning to surrogacy to build families, particularly:

  • Same sex male couples may pursue gestational surrogacy with the assistance of an egg donor.
  • Transgender individuals may use surrogacy when they are unable or choose not to carry a pregnancy themselves.

The law in England and Wales has evolved to recognise same-sex couples and individuals as legal parents, however, there are important steps to follow.

One of the key legal hurdles in surrogacy is who is considered the legal parent(s) at birth.

At Birth:

  • The surrogate is always the legal mother, regardless of genetics.
  • If she is married or in a civil partnership, her spouse or civil partner is the second legal parent (unless they did not consent).
  • This means the intended parents have no automatic parental rights at birth.

After Birth:

To become the child’s legal parents, the intended parents must apply for a Parental Order under the Human Fertilisation and Embryology Act 2008. To be eligible, the following criteria must be met:

  • The child must be genetically related to at least one of the intended parents.
  • The application must be made within six months of the child’s birth.
  • The child must be living with the intended parents.
  • The surrogate (and her spouse/civil partner, if applicable) must consent freely and fully after the birth.
  • The intended parents must be either:
    • A married couple, civil partners, or living as partners (same-sex or opposite-sex), or
    • A single person (since changes to the law in 2019).

Once a parental order is granted, the intended parents become the legal parents, and the surrogate’s name is removed from the birth certificate.

The Law Commission of England and Wales published a 2023 report recommending a major overhaul of surrogacy law. Key proposals include:

  • New Pathway to Parenthood: intended parents could be recognised as legal parents from birth, subject to pre-approval.
  • Clearer rules on expenses, eligibility, and safeguarding.
  • Continued prohibition of commercial surrogacy.

As of mid-2025, these proposals have not yet been enacted into law, but reform is likely in the coming years.

If you feel Franklins might be the right firm to advise you on your legal position, and you would like to enquire about when an initial appointment could be scheduled, contact our Family Law team on 01604 828282 / 01908 660966 or email [email protected].

Written by Nikita Bhara
Senior Family Solicitor, Family Law at Franklins Solicitors LLP

Specialises in child arrangements (including parental alienation and safeguarding), special guardianship, private adoption, parental responsibility, divorce, financial settlements, pre/post-nuptial agreements, protective injunctions, and name changes.

Nikita is a dedicated Family Law Solicitor at Franklins Solicitors LLP, with specialist expertise in complex children matters including parental alienation, safeguarding concerns, and child arrangements disputes. Since qualifying in 2018, she has built a strong reputation for guiding clients through high-conflict and emotionally sensitive cases with clarity and compassion.

Her experience spans private law adoption, special guardianship, parental responsibility, and protective injunctions, as well as matrimonial matters such as divorce, financial settlements, and pre/post-nuptial agreements.

A confident advocate, Nikita regularly represents clients in court, ensuring their voices are heard. She takes a calm, client-focused approach, providing practical advice and tailored support throughout each stage of the legal process.

Table of contents
Ready to speak to our Family Law team?

Contact us to arrange your initial appointment — call 01604 828282 / 01908 660966 or email [email protected]

Explore Articles