UK surrogacy law still has its roots in the 1980s. The Surrogacy Arrangements Act 1985 was rushed through Parliament as a reaction to the 'baby Cotton' case and it was hoped that restricting the arrangement of surrogacy would smother the practice before it developed (something which has not happened in practice).
The Human Fertilisation and Embryology Act 1990 provided that surrogacy arrangements were unenforceable but created a legal mechanism (parental orders) for ratifying surrogacy arrangements retrospectively where the baby had been handed over and everyone agreed. The provisions creating parental orders were tacked on to the Bill at the last minute, rather than being properly designed as a framework for surrogacy.
In 1997, the Labour government commissioned a report on surrogacy law (the Brazier Report). It recommended new legislation, a tightening up of the rules on payments, and regulation of surrogacy agencies by the Department of Health. However, none of the Brazier Report's recommendations were ever implemented.
Positive steps forward in recent years
Surrogacy has over the past 15 years become a mainstream and accepted way of building a family, and there have been various changes to the law, all progressive. In 2008, as part of the Human Fertilisation and Embryology Act 2008:
From 2008, the UK High Court began ratifying international surrogacy cases.
In 2009, the embryo storage rules were changed to remove a longstanding rule that surrogacy patients could not extend storage of embryos.
In 2010, British nationality law was amended to allow children born abroad to become British automatically on the grant of a parental order.
In 2012, following a long campaign, the government announced its intention to introduce maternity leave rights for parents through surrogacy. These changes came into effect in April 2015.
In 2013, the HFEA updated its guidance on surrogacy, creating specific forms and implementing a more flexible interpretation of the law on parenthood.
In 2016, the government told Parliament that, following the landmark ruling in the human rights case of Re Z (2016) it would change the law to remove discrmination against single parents, and that it would ask the Law Commission to consider reviewing UK surrogacy law.
We are now campaigning for a review of the law to support surrogates and families better. Find out more about how we think the law needs to change.