Surrogacy

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A surrogacy arrangement is the practice whereby a woman carries a child for another person with the intention that the child should be handed over at birth to the commissioning couple or party and raised as theirs. The key provisions for such arrangements are contained in the:

  1. •

    Surrogacy Arrangements Act 1985 (SAA 1985)

  2. •

    Human Fertilisation and Embryology Act 2008 (HFEA 2008)

  3. •

    Human Fertilisation and Embryology (Parental Orders) Regulations 2010, SI 2010/985 (SI 2010/985), revoked by the Human Fertilisation and Embryology (Parental Orders) Regulations 2018, SI 2018/1412 (SI 2018/1412), and

  4. •

    Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018, SI 2018/1413 (SI 2018/1413)

The Law Commission consultation paper on surrogacy reform, ‘Building families through surrogacy: a new law’, made provisional proposals to improve surrogacy laws to better support the child, surrogates and intended parents. On 29 March 2023, the Law Commission published its final report and draft surrogacy bill on the future of surrogacy law. The government’s interim response was published on 8 November 2023, in a letter from Minister Maria Caulfield MP, Parliamentary

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Latest Family News

Dignity, delay, and declarations on best interests (NHS South East London ICB v JP & the Royal Hospital for Neuro-Disability)

Private Client analysis: The decision that being provided with nutrition and hydration was contrary to JP’s best interests is recorded in a separate judgment (NHS South East London Integrated Care Board v JP & Others. This judgment focused on the delay in bringing the matter to court, which delay ‘compromised [JP]’s dignity’ (para [5]). Incapacitious individuals like JP are uniquely vulnerable and their interests require vigilant protection. Their inherent dignity as human beings requires regular assessment of where their best interests lie. Hospital trusts, charities, and ICBs all have to be proactive in promoting the dignity of such individuals. Disputes between family members must not be permitted to delay applications being made to court; instead, they are a signal to make an application. Family members are consulted to illuminate P’s likely wishes and feelings and values and beliefs, not to ascertain the family’s views on what is best. Sensitivity to strongly held family views should not be permitted to detract from the proper focus of decision-making: P’s best interests. Written by Katherine Hampshire, barrister at Serjeants’ Inn.

The Court of Appeal clarifies approach to the test for appointment of intermediaries (Re M (A Child: Intermediaries)

Family analysis: The Court of Appeal held that in a number of previous decisions, and in guidance issued by the President of the Family Division, an improper gloss had been placed on the wording of the test for the appointment of an intermediary under Part 3A of the Family Procedure Rules 2010 (FPR 2010) and FPR 2010, PD 3AA. The court found that necessity means necessity and needs no gloss and that the court at first instance had been wrong to refuse a mother in care proceedings an intermediary for a fact-finding hearing and her appeal was therefore allowed. The court allowed the appeal on its merits and looked at the development of the law on the test in some previous recent decisions. Rhiannon Lloyd, barrister and arbitrator at 4PB, examines the issues.

Family weekly highlights—17 April 2025

This edition includes details of the most recent View from the President’s Chambers and updated guidance on the use of artificial intelligence (AI) released by the Courts and Tribunals Judiciary. Recent judgments, including the Supreme Court's dismissal of an appeal against the discharge of injunctions prohibiting identification of the clinicians involved in treating gravely ill children, consideration of intermediary assistance in care proceedings and the use of a Hadkinson order are also set out.

The Supreme Court holds that anonymity for clinicians in withdrawal of treatment cases involving children should normally be of limited duration (Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust; Haastrup v King’s College Hospital NHS Foundation Trust)

The Supreme Court unanimously dismissed the hospitals’ appeals in these cases concerning withdrawal of life-sustaining treatment for children. There was no basis on which anonymity injunctions in relation to clinicians could be continued indefinitely. If anonymity is sought in such cases beyond a cooling-off period following the child’s death or withdrawal of treatment, the application should be made by the clinicians concerned. Such applications should be supported by specific evidence and the need for any restriction of freedom of expression must be established convincingly. Hannah Markham KC and Madeleine Whelan of 36 Family, Louise Sivey and Eloise Carey of Bates Wells, and Professor Carmen Draghici of the University of London comment on the judgment.

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