Celebrity baby announcements are often accompanied by a beautiful photograph, and a few words welcoming a much longed for new arrival. We have seen famous families popularise the use of a surrogate like Kim Kardashian and Kanye West who welcomed their third and fourth children via a surrogate and Paris Hilton and Carter Ruem who welcomed both of their children via a surrogate. More recently, Dutch Prime Minister Rob Jetten announced that they are expecting their first child via surrogacy in 2027. Yet when a child has been born through surrogacy, the announcement tells only a small part of the story.
From finding a surrogate they can trust and deciding where the arrangement will take place, to establishing legal parenthood after the baby is born, intended parents often navigate a complex journey that begins long before an announcement is shared online. We see many celebrities speaking openly about their growing families through surrogacy and, whilst some have been criticised for taking ‘the easy way out’ or for Sarah Jessica Parker, accused of only using a surrogate in a vain attempt to protect her ‘figure’, we take this opportunity to look beyond the headlines and what the journey can actually involve for intended parents in England and Wales.
Why do people choose surrogacy?
Surrogacy is often pursued when intended parents cannot conceive or carry a pregnancy for a number of reasons that may be medical, biological or personal. Some couples face Infertility with repeated miscarriages, or IVF failures which can traumatic and hugely stressful for those involved whilst other may pursue surrogacy due to suffering from severe health conditions such as heart disease or autoimmune disorders that can make carrying a pregnancy life threatening for the mother and baby. Surrogacy can also offer same-sex couples and single people pursuing parenthood a route to starting or growing a family. Whilst celebrities may have increased surrogacy visibility, it is certainly not a route reserved for the famous and many private individuals have embarked on this journey.
What happens before the baby arrives?
Surrogacy involves much more than the pregnancy itself. Before treatment begins, intended parents and their surrogate need time to get to know one another and discuss their expectations, including expenses, communication during the pregnancy and arrangements for the birth. Depending on the type of surrogacy, the process may also involve choosing a donor and undergoing fertility treatment. Planning for the baby’s arrival includes understanding the legal position at birth and the steps needed afterwards to transfer legal parenthood through a parental order. Whatever leads an individual or couple to choose surrogacy, the decision is only the beginning of what can be a lengthy and challenging journey.
There are two types of surrogacies:
- Traditional surrogacy, where the surrogate’s own egg is used; and
- Gestational surrogacy, where the surrogate carries an embryo and is not genetically related to the child.
Under the current legal framework in England and Wales, the person who gives birth to the child is recognised as the child’s legal mother rather than the intended parents. The identity of the child’s second legal parent can depend on the particular circumstances, for example, the marital or civil partnership status of the surrogate can be relevant. This means the legal position at birth may not mirror how the intended parents, surrogate and wider family view their relationship.
How do the Intended Parents become the legal parents?
Parental Orders were created in 1990 and were designed for children born by surrogacy. It extinguishes the birth parent’s legal status as a parent and transfers it to the intended parent. It reflects the parental status as always intended by the parties. This is a bespoke Order pursued for children born through surrogacy to give intended parents parental rights. It differs to an Adoption Order where the Adoption Order replaces parental status rather than extinguishing the parent’s relationship.
A Parental Order has to be applied for within 6 months of the birth of the child, although there are exceptions where intended parents can apply more than 6 months after if certain criteria is met. The intended parents will need to satisfy the criteria in s.54 of the Human Fertilisation and Embryology Act 2008 and the surrogate must consent to the making of the Order. There are eligibility requirements which include an individual applicant being genetically related to the child whilst a joint applicant or one of the applicants must be genetically related. When considering an application for a Parental Order the court must be satisfied that no money or other benefit has been given or received although the payment of reasonable expenses in connection with a child is permitted.
Calls for reform
The process, and the delay before intended parents are legally recognised as the child’s parents, can create practical difficulties and have prompted calls for reform of surrogacy law in the UK. Cases where a child has needed hospital treatment for which only a surrogate can legally consent does not reflect the reality on the ground where the child lives with and is cared for by the intended parents.
The current UK legal framework has been described as a significant deterrent for prospective surrogates, who may feel inadequately protected. The restrictions have contributed to a shortage of surrogates in the UK, with a significant majority of intended parents pursuing surrogacy overseas. Against this background, the Law Commission’s 2023 review called for reform, including proposals for intended parents to be recognised as the child’s legal parents from birth.
The review highlights why legal certainty matters for children born through surrogacy. Without a Parental Order, uncertainty can remain over a child’s legal parentage, with implications for their status, identity and inheritance.
Conclusion
By the time we see a celebrity’s carefully chosen photograph announcing their baby’s arrival, we are seeing just one moment in what may have been a much longer journey. Understanding the legal position early can help intended parents approach that journey with greater clarity and prepare for the steps that follow their child’s birth.
If you are considering surrogacy, planning an international arrangement or preparing to apply for a parental order, we can guide you through the legal process with clarity, care and sensitivity. Get in touch with our family law team for an initial, confidential discussion about your circumstances and the next steps available to you.
The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.
