The voluntary organisation Surrogacy UK reports that there have been over 700 successful surrogacy births since 1985 and is a popular reproductive method within the ever growing realm of assisted reproduction. As described by the Warnock Report (1984) surrogacy is ‘a practice whereby one woman carries a child for another with the intention that the child should be handed over after birth.’ From the case of Baby Cotton in 1985 to recent celebrity surrogacy arrangements, surrogacy continues to inspire controversy – it is therefore unfortunate that the practice of surrogacy fails to provoke legislative concern.
The practice is currently regulated by the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Acts 1990 Act, as amended by the Human Fertilisation and Embryology Act 2008. The SAA 1985 strictly prohibits all forms of commercial surrogacy whereas the HFE Acts govern surrogacy arrangements which involve the use of medical treatment such asin vitro fertilisation within a licensed fertility clinic. Natalie Gamble and Louise Ghevaert observe that one of the central criticisms of the HFE Act 1990, and indeed why a review of the 1990 Act began in 2004 was that it,
‘framed assisted reproduction law for heterosexual couples, aiming to shore up traditional family values and the institution of marriage and to discourage same sex and single parents.’
For those embarking upon unconventional paths to parenthood such as surrogacy, the hetero-normative structure of the HFE Act proved troublesome, creating legal obstacles for those who wished to be recognised as parents. Prior to the enactment of the 1990 Act, adoption was the primary route by which the commissioning couple could obtain legal parenthood of the commissioned child, providing the surrogate provides her consent. Unlike adoption, surrogacy is pre-emptive as the birth is commissioned on the basis that all parental rights and responsibilities of the gestational mother will be relinquished. This means that a different route to legal parenthood is required – which led to the introduction of parental orders.
Parental orders provide an alternative route for commissioning parents to be recognised in law as parents. But under the 1990 Act, parental orders could not be obtained by unmarried or same-sex couples, requiring them to undergo the long and arduous adoption process for a child they may be genetically related to. In April 2010, the HFE Act 2008 reformed this position to include same-sex and unmarried couples. This highlights a significant move away from the hetero-normative foundations of the HFE Act 1900. However, as the parental order scheme itself was not re-examined, same-sex and unmarried couples are now also subject to a difficult regulatory scheme.
Most prominently, many couples are now travelling abroad to become parents through surrogacy because payment for surrogacy are restricted in the UK, preventing the award of parental order. But this can cause great conflict between UK law and the legal approach of ‘surrogacy-friendly’ countries such as the US and Ukraine. An example of this is the case of Re X and Y  which involved a Ukrainian surrogate and British couple. Payment had been made to the surrogate and thus a parental order should be prohibited. However, as Ukrainian law recognised the commissioning couple as lawful parents, and UK law recognised the Ukrainian surrogate and her husband as lawful parents – without parental order, the twins born through surrogacy would be both parentless and stateless. A parental order was awarded in this instance as payment was not so great as to offend public policy. It appears that the court in this situation had no alternative but to award the parental order, and a result had to tailor the current legal stance to accommodate the case before them. Essentially the foundation upon which surrogacy law is grounded – prohibiting commercial payment – is now unsettled due to the increasing number of British couples travelling abroad. Instead of expanding the surrogacy law to include more potential parents, the law should have been revised effectively to ensure and protect the legal position of those seeking surrogacy elsewhere.
The review of the HFE Act 1990 was the ideal opportunity to revolutionise the legal regulation of surrogacy, welcoming it into the public sphere unrestricted by a hetero-normative legal structure. However, surrogacy received very little attention in terms of assessing how the law works in practice. Due to failure to adopt a fresh perspective on surrogacy law (as opposed to reshaping existing law) many legal problems remain, particularly in the area of parental orders and the legal regulation of overseas surrogacy arrangements. Whilst the majority of arrangements outside the HFE Act remain unregulated, legal problems do persist, encapsulated by the notion that ‘[t]here is clear demand for informal assisted conception at home and for treatment at clinics abroad, giving rise to new legal problems for the families involved.’ Gamble and Ghevaert suggest that in order to tackle this, ‘Parliament needs to take a fresh look at surrogacy and find a more effective legal solution fit for the twenty-first century.’ Until this happens, the legal regulation of surrogacy is ineffective, creating problems over solutions within a complicated, difficult area of law.