Surrogacy is no longer a hush-hush route to parenthood: it has become a headline topic, driving fierce debates as more families, including the ultra-wealthy, turn to it in record numbers. In the UK, parental order applications (which bestow legal parenthood on intended parents) have surged by more than 350 per cent from 2011 to 2021. And, while the numbers remain tiny in comparison to overall births, surrogacy patients in licensed clinics nearly doubled from around 130 in 2012 to roughly 230 in 2022.

Celebrities have only added to the visibility – and controversy. Lily Collins’ announcement that she welcomed her daughter, Tove, via a surrogate jolted social media into a fierce debate over wealth and reproductive access. On the other side of the Atlantic, narratives like Collins’ echo those of public figures such as Viscountess Emma Thynn (now Marchioness of Bath), who chose private surrogacy in the United States after being warned against pregnancy for health reasons, a decision that subtly reshaped societal perceptions.

For ultra-high-net-worth families in the UK, these stories aren’t just headlines, they’re part of a broader shift in how parenthood is constructed, negotiated, and legislated. In the face of legal complexity, international disparities and ethical scrutiny, the stakes could not be higher.

According to George Irving, family lawyer at Mishcon de Reya, “Those considering surrogacy need to ensure that they are properly informed before they embark on their journey. Take legal advice in the country where the surrogacy arrangement is taking place [as well as] in England and Wales. Ensure you have a proper understanding of both legal systems, the processes that need to be followed, and the timing of an application.”

The rising interest among ultra-wealthy families in surrogacy is shaping a new landscape for family law, estate planning and global mobility. At its core is a balancing act: the desire for a child, matched with the duty to ensure that the legal and financial frameworks are watertight.

Choosing a surrogate

For families considering surrogacy in the UK, the process can begin slowly. Unlike in the United States, surrogacy in Britain is only permitted on an altruistic basis and the number of available surrogates remains limited. Parents are usually introduced through non-profit organisations, such as Surrogacy UK, which facilitate meetings between intended parents and women willing to act as surrogates.

Anne Kay, co-founder and partner of VK Law, highlights the challenge: “First of all, the parents need to find a surrogate, which is often the most difficult step. In the UK, the process is managed through not-for-profit organisations… but there is a shortage of surrogates because the legal protection around these arrangements is unclear for both parties.”

This uncertainty has driven many families to look abroad. In countries such as the US and Canada, commercial surrogacy (where surrogates are paid for carrying a baby) is permitted and carefully regulated, with agencies managing the process from start to finish. These agencies can oversee medical treatment, psychological support, and the drafting of clear legal agreements that protect both the surrogate and the intended parents.

The legal journey to parenthood

Even when a child is born via surrogacy, the intended parents are not automatically recognised as the child’s legal parents under UK law. This comes as a surprise to many. “In England and Wales, intended parents of a child born through surrogacy are not legally recognised as a child’s legal parents until they have obtained a Parental Order,” explains Irving. “Until this point, the child’s legal parents are the surrogate mother (and her spouse or civil partner).”

This step is non-negotiable. Within six months of the child’s birth, parents must apply to the family courts for a Parental Order. The court will then investigate whether the surrogate freely gave her consent, whether the intended parents are eligible and whether the arrangement is in the child’s best interests.

As Kay explains, “Upon receiving that application, the family courts will then list a court hearing to make the parental order, having taken investigative steps in the interim period to ensure that the parties are entitled to such an order and that the surrogate mother has given her consent freely.”

Irving points to the case of Re Z (Foreign Surrogacy), in which the High Court set out a checklist for intended parents to follow when entering surrogacy arrangements overseas. The guidance emphasised clarity in contracts and full compliance with both local and English law. As Justice Theis OBE commented in her judgment, “The message needs to go out loud and clear that when intended parents embark on these surrogacy arrangements they need to ensure there is clarity about what is proposed, that the written agreement clearly provides for the essential arrangements and the relevant legal framework is understood at each stage.”

Immigration and cross-border complexity

For international families, or those choosing to pursue surrogacy overseas, immigration is another crucial element. A child born in California or Mexico, for example, may need to apply for a passport in that jurisdiction before a UK passport can be issued.

“Intended parents entering into an overseas surrogacy also need to consider their immigration options,” says Irving. “Depending on where the child is born, they may need to apply for a passport overseas and a United Kingdom passport upon return. Immigration advice should also be taken in both the UK and the country where the surrogacy arrangement is taking place.”

For UHNW families with multiple residences and assets across jurisdictions, these steps can be time-consuming. Each country has its own approach to parentage, surrogacy, and inheritance rights, meaning that specialist legal advice in each location is essential.

Inheritance, trusts and wealth planning

The impact of surrogacy on inheritance is one of the most significant legal issues for wealthy families to consider. If the correct steps are not taken, children born via surrogacy could find themselves excluded from wills, trusts and even succession plans.

Irving warns: “Many people, when preparing a will, include provision for ‘children’ or ‘grandchildren’, which would potentially be considered not to include a child born through surrogacy unless a Parental Order had been made. Likewise, should either parent die without a will, the child would not inherit under the intestacy rules unless a Parental Order had been made.”

Because the Parental Order process can take up to 18 months, families are advised to amend wills before the child is born, ensuring they are protected even if tragedy strikes during the legal process. The recent case of K vs Z, in which a Parental Order application was made for intended parents aged 72, emphasised the need for estate planning, requiring courts to be satisfied that intended parents had made provision for care and financial support in the event of incapacity or death.

However, the grey area is such that not all legal experts agree where the line is drawn. Kay takes a more straightforward view: “Babies born to surrogacy have exactly the same rights and entitlements as any other children. As such, they may be entitled to inherit under the intestacy rules if they have not been provided for by will. Similarly, any provision made under a trust for future children would apply equally to children born through surrogacy.”

Nevertheless, historic trusts may need reviewing. Families with long-established wealth often rely on decades-old documents, and many may not explicitly cover children born via surrogacy. International families face additional complexity in jurisdictions with forced heirship rules, where the recognition of surrogate-born children may vary.

The importance of location for surrogacy

When it comes to choosing a location for surrogacy, California remains the gold standard. Its laws are clear, its commercial infrastructure is robust and its welfare standards are high. Wealthy families have long favoured the state for precisely these reasons.

However, Irving notes that the picture is changing: “California has typically been one of the most popular destinations for wealthy intended parents. However, given political trends and changing social attitudes in the US, many intended parents are more cautious about the US and are exploring alternative destinations.”

Mexico City has recently emerged as a new hub. “Mexico City benefits from reliable local laws, commercial surrogacy infrastructure and speedy matching with surrogates,” Irving explains. “Reliable agencies and clinics ensure that welfare standards are paramount.” Other destinations, however, are less secure, with some countries abruptly changing laws, leaving intended parents in legal limbo. For UHNW families who cannot afford uncertainty, these risks can be deal-breakers.

Legal orders, immigration hurdles, inheritance planning and ethical considerations all shape the journey. As Irving advises, “Anybody considering surrogacy should be aware of this, should seek advice early on and should not cut corners.”

For UHNW families, the message is clear: building a family through surrogacy is not exactly a straightforward process but a multi-layered legal and financial project. Those who approach it with careful planning and expert legal guidance are best placed to navigate the path to parenthood with clarity and security.

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