Common Legal Challenges In LGBTQ+ Surrogacy And how To Navigate Them

Surrogacy is a practical and rewarding way for LGBTQ+ individuals and couples to build a family. However, the legal framework surrounding surrogacy in the UK can be complex. Understanding your rights and responsibilities from the start can make the journey smoother and help you feel more in control of the process.

The Current UK Legal Landscape For Surrogacy And LGBTQ+ Parents

Surrogacy is legal in the UK, but it operates under a unique legal structure that differs from many other countries. The key piece of legislation is the Surrogacy Arrangements Act 1985, along with the Human Fertilisation and Embryology Act 2008 (HFEA).

Under current law, the surrogate is recognised as the legal mother at birth, regardless of genetic connection. If she is married or in a civil partnership, her spouse or partner may also be recognised as the other legal parent, unless it’s proven that they did not consent to the arrangement.

To transfer parenthood to the intended parents, a Parental Order must be applied for after the baby’s birth. This order permanently transfers legal parenthood to the intended parents, and once granted, the surrogate and her partner (if applicable) no longer hold parental status.

Key Legal Challenges Faced By LGBTQ+ Intended Parents

1. Parental recognition and timing of Parental Orders

Until a Parental Order is granted, intended parents may not be recognised as the child’s legal parents. This can affect decisions such as medical consent or registering the birth. For LGBTQ+ couples, where one partner may not be genetically related to the child, it can be a difficult waiting period.

2. International surrogacy and differing legal frameworks

Many LGBTQ+ families explore international surrogacy, especially in countries like the US or Canada where laws can be more straightforward. However, bringing a baby born via surrogacy abroad back to the UK involves a number of immigration steps and documentation. The Home Office provides guidance on British nationality and surrogacy that’s essential to review early in the process.

3. Restrictions around commercial arrangements

Paying a surrogate beyond “reasonable expenses” is not permitted in the UK. While this protects against exploitation, it can make it difficult to define what counts as “reasonable,” particularly when comparing costs abroad. Courts assess each case individually when approving a Parental Order.

4. Challenges for trans and non-binary intended parents

Although the HFEA 2008 extended parental rights to same-sex couples, some trans and non-binary people still encounter administrative or language barriers when dealing with fertility clinics or official forms. For example, certain documentation may still refer to gendered terms that don’t reflect a parent’s identity, though this is slowly improving through NHS and legal reforms.

5. Lack of automatic parental rights for non-genetic parents

In male same-sex couples using gestational surrogacy, typically only one partner provides sperm for conception. The non-genetic parent must still go through the Parental Order process, even if both intended parents are named in the surrogacy agreement.

How To Navigate The Process With Practical Legal Strategies

Seek specialist legal advice early

 Before entering any surrogacy arrangement, it’s advisable to consult a solicitor who specialises in surrogacy and family law. Organisations like Law Society – Find a Solicitor can help you locate a qualified lawyer with experience supporting LGBTQ+ families.

Draft a clear surrogacy agreement

 Although surrogacy agreements are not legally enforceable in the UK, they are still useful for setting expectations about expenses, decision-making and communication. Written agreements show the intention of all parties and may support the Parental Order process later.

Stay informed about parental order criteria

 The courts will check that:

• The surrogate has freely consented to the Parental Order.

• The intended parents are genetically related to the child (at least one).

• The application is made within six months of birth.

• The child lives with the intended parents in the UK.

Understanding these criteria early can prevent delays once the baby arrives.

Build supportive relationships

Maintaining open, respectful communication with your surrogate is vital. Many intended parents describe these relationships as lifelong friendships built on mutual respect and shared purpose.

Emerging Developments And Their Impact On LGBTQ+ Surrogacy

Reform is on the horizon. The Law Commission of England and Wales and the Scottish Law Commission have proposed major updates to surrogacy law. Their 2023 report recommends that intended parents could be recognised as the child’s legal parents from birth under a new “regulated surrogacy pathway,” provided all pre-conception requirements are met.

If implemented, these changes could greatly reduce uncertainty for LGBTQ+ parents, especially those facing delays in obtaining Parental Orders. The proposed reforms also suggest stronger safeguarding and clearer rules around payments and consent, aiming to modernise UK surrogacy for all families. 

Checklist And Best-Practice Tips For LGBTQ+ Intended Parents

• Start with education – Learn about the full surrogacy process, including emotional, medical and legal aspects.

• Seek community support – Groups like Proud2bParents provide valuable peer guidance.

• Choose a trusted fertility clinic – Ensure the clinic understands and supports LGBTQ+ family structures.

• Keep detailed records – Maintain copies of all agreements, correspondence and receipts.

• Plan for post-birth steps – File the Parental Order promptly and update your child’s records once granted.

Surrogacy can be a positive and empowering route to parenthood for LGBTQ+ families, provided that the legal process is approached with knowledge and preparation. While current UK law still presents hurdles, particularly around parental recognition, ongoing reforms and growing awareness are helping to create a more inclusive and supportive environment for all intended parents

For more information on Growing Generations visit www.growinggenerations.com.