The Working Group on Parentage/Surrogacy – a new way to navigate international surrogacy agreements?

Currently, the surrogate mother has automatic legal parentage. Intended parents must wait until the birth of the child to apply to the court to become the child’s legal parents, which typically takes six to twelve months. In the meantime, the intended parents’ ability to make important decisions about their child is impacted. This also represents challenges in the international surrogacy agreements context.

In the UK, around half of all surrogacy agreements involve other jurisdictions. Different jurisdictions have different cultural attitudes, laws and approaches to surrogacy arrangements so the lack of an international framework means the issue of legal parentage is often determined based on fragmented principals and conflicting laws. In international situations, the consequences are more serious and can involve challenges in being granted legal status or parentage orders, difficulty obtaining passports or the necessary travel documents to return the child home with their intended parents, and, if public policy issues arise, obstacles obtaining parental responsibility. This can happen in a situation where a child is born in a foreign jurisdiction under a surrogacy agreement that would be considered illegal here, for example.

The concern surrounding the lack of international harmonisation regarding legal parentage has led to a Working Group being established by the Council on General Affairs and Policy (the governing body of the Hague Conference on Private International Law, an intergovernmental organisation set up to resolve the issue of differences between countries’ legal systems). The Working Group on Parentage/Surrogacy is working to develop an international legal instrument to provide greater certainty, continuity and predictability in cross-border surrogacy, which is not easy to do whilst considering the rights and interests of the individuals involved and the differing approaches to surrogacy worldwide.

The Working Group met for the fourth time last week, from 7 – 11 April. A detailed report will follow but it has been confirmed that the group continued discussing draft provisions for a new instrument being developed on legal parentage, including for circumstances where legal parentage results from international surrogacy agreements. The next meeting is scheduled for November this year. After that meeting, the Working Group will update the Council on General Affairs and Policy of the HCCH in March 2026 as to its progress with this important work towards improving international surrogacy arrangements.

This is of particular interest as the Law Commission of England and Wales and the Law Commission of Scotland published a joint report in March 2023 which aimed to address reform in the area of surrogacy arrangements in the UK. The Government provided an interim response on 8 November of the same year, and although a full response was expected in 2024, this has yet to be published. It was reported that the government met with the Law Commission in November 2024 to discuss the report and draft bill, so it is hoped a full response will be published later this year. The outcome of the discussions of the Working Group on Parentage/Surrogacy may well prompt the UK Government to consider the Law Commission’s report more closely to ensure that the law surrounding surrogacy arrangements in the UK develops and evolves in line with international legislation.