Is it legal to pay a surrogate in the UK?
Paying a surrogate in the UK is a complicated matter. Under the current UK surrogacy laws, ‘commercial surrogacy’ is illegal. Commercial surrogacy is an arrangement where the intended parents of a child (IPs) pay a woman to have their baby for them. This arrangement is very common in some other countries, for example, in some American States. However, it is not permitted in the UK.
It is permitted to pay a surrogate their ‘reasonable expenses’. Essentially, this covers things like:
- Travel to and from hospital appointments or the fertility clinic
- Prescription medication related to the pregnancy
- Maternity and post-birth clothing
- Potential loss of earnings, and
- Childcare expenses for the surrogate’s children (if she has any) when she needs to take time out for appointments.
The concept of reasonable expenses is generously interpreted, and essentially includes anything that is related to the pregnancy, even a will being drafted if the surrogate doesn’t have one.
It is advisable to include in your Surrogacy Agreement what you expect these expenses to include and, where possible, a budget for them. These expenses will then need to be set out when you make the application for your Parental Order, shown in your agreement if you have one, as the Court must then approve them. Therefore, it is important to keep all receipts and invoices to show what reasonable expenses have been incurred.
However, it’s important to note the distinction between these kinds of expenses and outright paying a woman to have a baby for you. Essentially, if there is a financial incentive for the women to become a surrogate, this is commercial surrogacy.
What is a surrogacy agreement?
A Surrogacy Agreement is a formal document created by the people involved in a surrogacy arrangement. This likely includes:
- The surrogate mother
- The intended parent or parents
- The spouse of the surrogate if she has one
- Anyone involved in the practical or financial processes, for example if family members of the IPs are helping with expense payments
Surrogacy Agreements are bespoke documents that set out the responsibilities of each person involved, as well as what expenses will be covered within the ‘reasonable expenses’ category. It can also include plans for any issues, for example if the surrogate miscarries, or requires urgent medical attention. They can also make plans for the pregnancy, birth, and transfer of the child after birth.
Solicitors tip: Getting your Surrogacy Agreement looked over and approved by a specialist family lawyer will support the process and make sure you’re in the best position moving forwards in case of any issues.
Contact our specialist surrogacy and fertility lawyers to find out how we can help.
How do payments work in international surrogacy arrangements?
Many intended parents are increasingly seeking international surrogacy arrangements as, on the surface, the process is easier. The fact that the intended parents will become the legal parents upon the baby’s birth is a huge incentive.
Learn more about how surrogacy works in the UK.
However, there can be complications both legally and financially in such arrangements. Although commercial surrogacy is often legal abroad, and intended parents can pay surrogates a fee as well as their reasonable expenses, these payments will need to be approved by a UK court when the family returns to the UK.
For example, intended parents may travel to California to proceed with a surrogacy arrangement. They may pay the surrogate to have the baby, and pay expenses as well.
Should the family return to the UK, they will need to go through the legal process of transferring parenthood from the surrogate mother to the intended parents through applying for a Parental Order. Within this, the court will need to approve any payments made to the surrogate, over and above reasonable expenses. The intended parents will need to provide evidence of payments made, and what they were for.
As commercial surrogacy is legal in the country the arrangement took place in, the Court will generally approve the payments. However, it is best to have everything formalised in a Surrogacy Agreement, which can be drawn up between the parties involved and approved by a family lawyer. This helps evidence the arrangement, and the payments made.
How is paying an international surrogate treated in law?
In a recent High Court case, new case law was set for international surrogacy payment which means that when the court is approving payments made, their priority is the welfare of the child, rather than the UK public policy associated with commercial surrogacy.
UK parents who are seeking surrogacy arrangements abroad are not committing a criminal offence when they pay the surrogate a fee, but it has often required justification in UK courts. The new precedent shifts the focus onto the behaviour of the parties throughout the arrangement and how ethical the process was (e.g. the intended parents did not take advantage of the surrogate).
A & B v C & D EWHC 972 [2026] (Fam) involved payments made to surrogate mothers over 9 different cases. All cases were dealt with under one judgment.
Up until this point, UK courts must have been satisfied that applicants for Parental Orders (the legal process of transferring parenthood) did not give or receive payments in relation to the surrogacy arrangement over reasonable expenses, unless they had been court authorised. Payments can be approved retrospectively, which has meant that Parental Order can be made in the vast majority of cases. However, it has been a balancing exercise for the court, where public policy has been weighed against the welfare of the child.
In this case, the Judge concluded that the child’s welfare is the paramount concern, and payments made in international surrogacy arrangements are of little concern if the parents have behaved legally, responsibly and ethically.
Notably, commercial surrogacy remains illegal in the UK. This case law only applies to arrangements conducted in other countries where the intended parents and the child return to the UK and apply for a Parental Order.
Top tips for parents seeking surrogacy arrangements
Anna Stinton, an Associate Solicitor in our London office, explains:
“Surrogacy can be a wonderful way to grow your family, but there are legal processes to be aware of. It’s not simply a case of asking someone, and sorting it all out by yourselves. You’ll need to seek legal advice on the best method of conception to ensure all the fertility laws and processes are adhered to.
It’s best practice to get a Surrogacy Agreement in place before anything else. Everyone involved should be part of this, and sign it. It’s not a legally binding document but it is a formal contract which will likely stand up in court.
If you’re looking abroad for a surrogacy arrangement, remember the two key elements: you still need to apply for a Parental Order when you and the child return to the UK, and any payments made to the surrogate need to be court approved.”
Keep reading
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