Surrogacy has evolved significantly over the past four decades since the first documented case in the UK (1985). With the changing family structures in society with – (single parent, same sex couples, different sex couples and unmarried couples), surrogacy parental order legislation in the UK lags behind and have not kept pace with other significant breakthrough in medicine including gene mapping. However surrogacy has been resilient in adapting to fit different niche. It continues to evolve (albeit painfully slowly) to support women’s (birthing people’s) choices in reproductive health globally to achieve the ultimate precious gift of producing genetically related child/children.

• UK Surrogacy Parental Order – (HFEA 1990)
• UK Surrogacy Pregnancy Legislation
• Surrogacy Evolution – Reproductive Choices

Ann Burell C (2025) The UK Surrogacy Parental Order (HFEA 1990) remains a Challenge in Supporting Women’s Choices in Reproductive Health. Med J Obstet Gynecol 13(1): 1193.

Surrogacy allows a woman (birthing person) to carry a pregnancy (with or without using her egg), with the purpose of handing over the baby to the intended parents after delivery. The first successful IVF assisted pregnancy in the world occurred in the UK (1978) [1]. Almost a decade later, the first known surrogacy assisted pregnancy occurred in the UK (1985) [2]. As a result of these advances and innovations in women’s reproductive health, the Human Fertilization and Embryology Authority (HFEA), was introduced in the UK (1990) to govern IVF assisted reproduction. The HFEA was the first statutory body of its kind in the world to oversee the licensing, monitoring, inspection and provision of medical and legislative information for fertility clinics including fertility treatment, egg, sperm and embryo utilization, storage and ethical disposal [3]. Within the UK, the HFEA provides protective legislation for IVF treatment and surrogacy pregnancy within a fertility clinic [3].

Over the past three decades, surrogacy has evolved from not just helping intended parents – (single parent, same sex couples, different sex couples and unmarried couples) to achieve their aspiration of becoming a parent for a genetically related baby; but also to help existing parents to have more children and produce extended, blended and unique families. The small nuclear family has been complemented and sometimes replaced by several unusual combinations of dynamic family structures [3]. More recently, celebrities have made surrogacy very popular and more acceptable, thus reducing and minimizing the stigma of infertile/sub-fertility [4]. Older female family members have been known to act as surrogates for younger members of the family.

The HFEA (1990), introduced the Parental Order to facilitate a smooth transition of parental rights and responsibilities from the surrogate to the intended parent(s). Under UK legislation, the surrogate remains the legal parent, irrespective of wherever in the world that the child was born. In the UK, the intended parent(s) - (single parent, same sex couple, different sex couple, and/or unmarried parent) must apply for a parental order (child arrangement order) to become the legal parent of any child/children born as a result of surrogacy [5].

The intended parents must satisfy the UK Family Court Section 54 (couples) and Section 54A (single parent) of the HFEA (2008) [3]. UK legislation dictates that a Parental Order will only be granted (HFEA Act 2008 Section 54) if the following conditions are met:-

1. Conception must involve placing an embryo, sperm, egg, donor insemination into the surrogate. At least one party must be genetically related to the child.
2. The intended parent(s) must be married, civil partners, or cohabitees, and both are must be > 18yrs old.
3. The surrogate must give full consent to hand over the baby within 6 weeks after delivery.
4. The parental order application must be made within 6 months after delivery.
5. The child/children must be living with the intended parent(s), one/both must be domiciled in the UK mainland (England, Scotland, Wales and Northern Ireland) or the Channel Island or the Isle of Man.
6. Reasonable expenses must be paid to the surrogate.

The surrogate must give unconditional consent (free of coercion) to hand over the baby as seen in the case of [D and L (Surrogacy)] [5]. In the UK, the Surrogacy Act is legally un-enforcible. In this case, a surrogate changed her mind and was allowed by the courts to keep her baby [Re TT (Surrogacy)] [6]. Parents who are separated or divorced after obtaining a parental order are seen by the Child Custody Court as being in the same position, independent of a surrogacy background as seen in the case of [G v G (2011)] [7]. The Court have set a precedent in awarding a parental order just over 6 months after birth as seen in the case of [Re X (A Child) (Surrogacy: Time Limit)] [8]. To qualify for a parental order, the child must be living with the intended parent(s), one or both must be domiciled in the UK or Channel Island or the Isle of Man. However the court interprets domicile in a broad sense to facilitate the best interest of the child as seen in the case of [CC v DD (2014)] [9]. Therefore, domicile goes beyond where the intended parent(s) currently live(s) or their citizenship status; but also incorporates their permanent home. Therefore parents living overseas with significant roots in the UK may still be eligible to apply for a parental order. The court approves a parental order when reasonable expenses are paid to the surrogate to prevent inducement to gestate, exploitation and to promote children’s safeguarding [10]. Adoption differs from surrogacy as only the latter is restricted by these strict rules [11].

Over a quarter of a century has passed since the Parental Order (HFEA 1990) was introduced in the UK. Since then, there has been very limited advancement in Surrogacy Legislation to support either intended parents or surrogates [12]. Few changes have occurred to support women’s choices in reproductive health. The few changes that have occurred in the past three decades includes - The HFEA (2010), amendment which allows same sex couples and unmarried couples to be eligible to apply for parental orders. The HFEA Code of Practice (2013), allows the intended mother’s name and the surrogate’s name to be written on the baby’s birth certificate once both had signed the HFEA Parental Electron Forms before conception [13]. The case of R and Another v An tArd Charaitheoir and Ors set a precedent in the UK, as the Irish High Court allowed the intended mother, in this case the genetic mother to be the legal mother at birth, thus allowing her name to be documented on the baby’s birth certificate immediately after birth [13]. This new legislation allowed the intended parent to have full responsibility (not the surrogate) at birth by signing the birth certificate [14]. The HFEA Code of Practice (2013), allows the intended mother’s and surrogate’s names to be documented on the child’s birth certificate if the HFEA Parental Electron Forms were signed pre-conception.

The other significant change occurred almost two decades ago (April 2005). This advancement in the HFEA legislation resulted in changes in donor anonymity for IVF assisted pregnancy in Fertility Clinics. Therefore HFEA clinics in the UK can release information about the donor under certain circumstances. Since April 2005 until present, under UK legislation for IVF assisted conception egg and sperm donors are no longer anonymous. However, there is an exception to this rule. For families who already had a child conceived with an anonymous donor (pre 2005), the donor would remain anonymous but the couple could be treated again with this anonymous donor to conceive a genetically related sibling. Donor conceived individuals from the age of 18 years old who would like to be put in contact with another donor conceived sibling can join the HFEA Donor Sibling Register [15]. On request, the HFEA can put donor-conceived siblings in touch with each other. Currently egg, sperm and embryo donors can apply to the HFEA or the Fertility Clinic to get limited information about the outcome of their donation, and about whether the donation resulted in the birth of a baby, the sex of the baby and the year of birth. The donor does not have the right to request the identity of the children or their parents. Unlike IVF, surrogacy has no national registry in the UK [3].

It has been four decades since the first known surrogacy assisted pregnancy case was documented in the UK (1985). The first two IVF assisted babies born in the UK, are now adults and they have since conceived naturally and both had successful pregnancy outcome. Bristol Museum Archives, UK and the National Science Museum, London, UK were granted permission to display the journey of the world’s first successful IVF pregnancy [16]. Three and a half decades have passed since the Parental Order (HFEA 1990) was introduced in the UK. There should have been more changes to support innovation and women’s choices in reproductive health for surrogates and intended parents. More could and should be done. In fact, the last significant change occurred well over a decade ago (2010).

One could debate and compare the minimal changes in surrogacy parental orderwithotherscientificbreakthrough that also started three and a half decades ago (1990). Back then, Scientists began research to crack the human genome. Just over a decade later (2000), Scientists successfully completed the mapping of the human genome consisting of 22,000 genes, providing data to identify thousands of mutations. The successful mapping of the human genome has directly affected reproductive medicine in deciphering the code for defective genes for example in mitochondrial replacement therapy (MRT) [17]. Surrogacy continues to evolve to fit other niche, in helping couples affected by mitochondrial disease to have the choice to overcome reproductive hurdle to produce genetically related babies. The UK was the first country in the world to legalize MRT to enable women with mitochondrial disease to have healthy genetically related children, with DNA three parents (2016). MRT involves removing the mutated DNA from the affected female’s (birthing person’s) egg and replacing it with the un-affected donor’s mitochondrial DNA. MRT does not cure the mitochondrial disease as the mother is still affected; instead, it aims to prevent transmission to the baby. Since mitochondrial disease transmission is uniparental of maternal origin (lineage) only, the faulty mitochondrial DNA is passed from mother to child via dominant vertical transmission. There is no FDA approved drug to cure mitochondrial diseases, thus the only option is egg donation to eliminate the faulty DNA transmission. Although MRT replaces only 37 genes (0.1% of the adult genome), the ethics of MRT and selective reproduction (removing mutated genes) versus embryo modification (replacement of defective genes) remains controversial. MRT Opponents argue against creating ‘designer babies’ and germline gene manipulation which affects subsequent generations. Proponents defend MRT as it facilitates reproductive autonomy and promotes women’s choices, and they view MRT as mitochondrial donation similar to other organ donation.

It is critical that the parental order must evolve to promote advancement in women’s health globally to provide more reproductive choices and support society’s changing family structures, as the nuclear family has been complemented and sometimes replaced by a rich tapestry of unique family structures - including same sex parents, different sex parents, single parents, and unmarried couples. With the rapid advancement in the science surrounding artificial intelligence (AI), gene mapping and the significant changes in work patterns with hybrid working post the global Covid infection, the psychological approach to family structures have evolved significantly in a very short time. Irrespective of the profound lethargy with the advancement in legislation surrounding the parental order compared to the advancement in other areas of medicine, surrogacy continues to evolve and thus brings out the best in people as individuals and society in general. The need for surrogacy has not and will not fade away. This is contrary to the Warnock Report (1984) which labelled surrogacy as totally ethically unacceptable that will wither on the vine and die [18]. Thus the need for parental orders will not be abated. In fact cases are more intricate involving more complex family structures discussed above. Over time, surrogacy will continue to evolve even more to fit other unique niche in society.

1. Human Fertilization and Embryology Authority (HFEA). Annual Report. London; HFEA, 1990
2. Human Fertilization and Embryology Authority (HFEA). Annual Report. London; HFEA, 2008
3. Burrell C. Review Article: Review of the Parental Order (HFEA 1990) over the past three decades. Ann Pregnancy Care. 2003; 5: 1011
4. www.cnn.com/2023/06/08/entertainment/chrissy-teigen-john- legend-surrogate-son/index.html
5. D and L (Surrogacy) [2012] EWHC 2631 (Fam).
6. Re TT (Surrogacy) [2011] EWHC 33 (Fam)
7. G v G (2011) [IESC 40].
8. Re X (A Child) (Surrogacy: Time limit) [2014] EWH3135C
9. CC v DD (2014) EWHC 1307 (Fam).
10. Burrell C, O’Connor H. Surrogate pregnancy: Ethical and medico-legal issues in modern obstetrics. The Obstetrician and Gynaecologist. 2013; 15: 113-119
11. Burrell C. Edozien L. Who is the ideal surrogate. Handbook of Gestational Surrogacy. ISBN 9781107112223. Cambridge University Press Oct 2016.
12. Burrell C, Edozien L. Surrogacy in Modern Obstetric Practice. Semin Fetal Neonatal Med. 2014; 19: 272-278.
13. MR & Anor v An tArd Chlaraitheoir and Others [2013] IEHC
14. Burrell C, O’Connor H. Surrogate Pregnancy: Challenging the legal definition of motherhood. Br J Obstetr Gynaecol. 2014; 121: 308.
15. Human Fertilization Embryology Authority Donor Sibling Register
16. www.bristolmuseums.org.uk/blog/first-ivf-mother-lesley-brown.
17. Burrell C. ‘Mitochondria Replacement Therapy and 3-Parent Children.” Br J Obstetr Gynaecol. 2017; 124: 1056.
18. Burrell CO, Connor H. Surrogate Pregnancy: Ethical and medico-legal issues in modern obstetrics. The Obstetrician and Gynaecologist. 2013; 15: 113-119