Britain must not liberalise surrogacy laws

Last month, a petition calling for commissioning parents of surrogate born children to be awarded parental rights at birth reached over 100,000 signatories, meaning the petition will likely be debated in the House of Commons. The petition was launched by a fashion entrepreneur, Adam Frisby, and his partner Jamie Corbett, both of whom enjoy large TikTok and Instagram followings.

British citizens Frisby and Corbett pursued commercial surrogacy in the United States, in arrangements which would not be legally recognised or enforceable if undertaken here. Despite knowing in advance such arrangements would require scrutiny and sign-off by the courts of England and Wales on their return to the UK with their surrogate born daughter, last month they took to the TV screens to plead their case, to gain parental rights at birth, to the British public. 

In a ten-minute segment on ITV’s This Morning, during which Cat Deeley and Ben Shephard cooed over Frisby and Corbett’s baby daughter and did not make any attempt at balancing the discussion of surrogacy, the pair lamented the process they needed to go through to get legal parental rights for their daughter. Namely, applying for a parental order, receiving a visit from a CAFCASS appointed social worker, and filling in paperwork to be submitted to the High Court. 

A parental order transfers legal parenthood of a child from his or her mother, and her husband if she is married, to the commissioning parent(s). Parental orders are long established, and were first introduced in the HFEA Act of 1990, with parental orders for international surrogacy first being ratified by the courts in 2008. Regulations have changed in recent years to enable same-sex and unmarried couples to apply, and in 2019 single people were allowed to apply for parental orders for the first time. Since 2019, 170 single men have done so. 

Far from the long and drawn-out process that Frisby and Corbett feel that it is, and the “legal fight” described in some quarters of the media, a parental order application is not particularly difficult or time-consuming to embark upon. It cannot be applied for until six weeks have passed after the birth of the child but must be applied for within six months of the child’s birth. The Court then appoints a CAFCASS social worker to visit the commissioning parents and provide a report to the judge, who will then (in the vast majority of cases) recommend the order is granted after seeking consent from the surrogate mother. These stages are vital in safeguarding both mother and child, to ensure the surrogate mother — who in the majority of cases will live abroad — actually consents, and hasn’t been coerced into agreeing to the arrangement, and to ensure that those pursuing surrogacy are subject to at least a rudimentary welfare check. This is especially critical given that often one of the commissioning parents may not be genetically related to the child. As is well known, there is, on average, no higher risk to a child than living in a home with an unrelated male. Checks on commissioning parents in surrogacy do not come close to the level of vetting we see in adoption. 

The parental order system is increasingly vociferously opposed by commissioning parents, who favour arrangements more like those seen in international commercial surrogacy, where the mother loses her parental rights to the child either at birth, or while the child is still in utero, as is the case in California and Mexico City. Of course, this means that in the eyes of the state, where such practices flourish, the surrogate mother is viewed not as the mother but is effectively reduced to an incubator. Mercifully in the UK, we don’t yet mete out such dehumanising treatment to surrogate mothers. They are rightly recognised as the mother in British law — retaining the right to change their minds (essential especially given how many British surrogate mothers use their own eggs in their pregnancies).

And that’s the bit that commissioning parents can’t stand. They don’t want the mother to be able to change her mind. They don’t want her ever to be recorded on the child’s birth certificate. Increasingly in many cases, they would prefer to pretend the child doesn’t have a mother full stop. How much easier to write her out of the child’s life, and erase her completely, if you could ensure that legally, in the eyes of the state, she never really existed at all. Women are essential for pregnancy and childbirth, but heaven forbid we be legally recognised for being so, in the world according to commissioning parents and pro-surrogacy lawyers, academics and lobbyists.

One almost can’t entirely blame the commissioning parents for making this case. After all, our Government regrettably sanctions surrogacy. It directs would-be commissioning parents to guidance on Government websites and endorses surrogacy as a form of “assisted conception”. On social media, celebrities with large followings are used to receiving nothing but praise and banal platitudes for pursuing surrogacy. Given the Government permits people to go abroad for surrogacy, why would you assume the rules should be different here than they are elsewhere when it comes to allocation of parental responsibility? Never mind the fact that surrogacy contradicts all known best practice and guidance for the care of newborn infants and denies the essential role of the mother-baby bond in developing a happy, healthy child, or that in British law we afford greater rights to puppies and kittens than we do to human children. 

Frisby and Corbett trotted out the tired rationalisations we are used to hearing from commissioning parents: that their lack of parental rights means they are unable to take crucial decisions, including medical ones, for their daughter. Again, this is a mistake. No commissioning parent has ever been denied vital medical treatment for a child because of a surrogate mother being unable to be located to provide permission. Nor, with the NHS prioritising urgent treatment of sick children, would they ever be so. Frankly, if commissioning parents are unable to locate surrogate mothers during the time while a parental order application is underway, that could well suggest they do not have the close relationship the general public generally believes takes place within surrogacy arrangements.

In other cases, it could suggest something worse. Surrogate mothers are meant to supply their consent to the making of the order, but we know of surrogate mothers who felt pressured into giving their consent, and others in international arrangements who could not be found. In such cases the courts have approved the awarding of the order regardless. Such a situation would hardly suggest that commissioning parents are being blocked left, right and centre from obtaining parental rights for their children. 

357 applications were made for parental orders for babies born to surrogate mothers abroad last year, versus 139 applications for babies born to surrogate mothers in this country. Foreign surrogacy applications are soaring, as commissioning parents seek cheap surrogacy abroad in jurisdictions where mothers cannot change their minds. Indeed, in countries such as Ukraine and Georgia they can be relieved of the tedium of even meeting the surrogate mother at all. Surrogacy in jurisdictions such as Ukraine, Georgia, Mexico, Colombia and, increasingly, Nigeria, is far cheaper than California and other US states. Commissioning parents who don’t want to pursue surrogacy in the UK, where those pesky surrogate mothers retain their legal rights to the child usually for six months following the birth, increasingly go abroad. 

In 2024, the EU Anti-Trafficking Directive (Directive (EU) 2024/1712) included surrogacy as a form of human trafficking. Surrogacy, in all forms, remains illegal in most European countries. In Italy and Spain, governments have gone further. Italy has criminalised the pursuit of surrogacy abroad for its citizens, and Spain has stopped allowing surrogate born children to be registered at its embassies abroad. Meanwhile here we stand on the brink of a parliamentary debate where MPs will discuss removing the few rights surrogate mothers currently retain. 

What a stain on Britain’s reputation it would prove to be if we relaxed our rules to make this trade in human children even more of a free-for-all

It’s quite the thing to consider that there aren’t many criminal activities we proscribe in Britain, which we allow our citizens to partake of abroad and then later sanction in our courts. Women and children’s rights activists believe this is a loophole in the law which should be closed — that British citizens should not be allowed to go abroad and effectively buy babies off their often desperately poor mothers, while subjecting her to higher risk pregnancy as they do so. 

However, while it remains legal for Britons to go baby shopping abroad or at home, the parental order system must remain. It would be unconscionable, as well as legally extremely suspect, to allow people who pursue surrogacy either in Britain or abroad, to treat it as though it were an entirely private matter. Tens of thousands of pounds are usually paid to surrogate mothers, in this country, and overseas, with international surrogacy agencies outside of the UK making a profit. The very idea that such arrangements should just be waived through at the UK border without any further checks is not only laughable, but downright dangerous. Many of us believe that surrogacy will ultimately come to be seen as one of the great human rights abuses of modern times. What a stain on Britain’s reputation it would prove to be if we relaxed our rules to make this trade in human children even more of a free-for-all in the meantime.