Surrogacy unwrapped: legal pathways, judicial creativity and the case for reform

This article examines the evolving legal landscape of surrogacy in England and Wales, highlighting the tension between an outdated statutory framework and the realities of modern family formation. While the Human Fertilisation and Embryology Act 2008 provides the legal foundation, much of the current approach has been shaped by judicial innovation aimed at achieving outcomes that reflect the child’s welfare.

A central issue is the legal fiction that the birth mother is always the child’s legal mother, creating a disconnect in surrogacy arrangements. Parental orders are therefore essential to transfer legal parenthood, yet the statutory criteria governing them have been applied with increasing flexibility by the courts.

The article explores key developments, including the extension of parental orders to single applicants, the relaxation of strict time limits, and the careful scrutiny of consent and payments. Through case law, the courts have prioritised welfare over technical compliance.

Ultimately, the article argues that while judicial discretion has enabled fair and humane outcomes, it has also exposed the urgent need for comprehensive legislative reform