Surrogacy is a life-changing path to parenthood for many individuals and couples, including members of the LGBTQ+ community. In England and Wales, whilst surrogacy is legal, it is governed by complex laws.

What is Surrogacy?

Surrogacy is an arrangement where a woman (the surrogate) agrees to carry and give birth to a child for another person or couple (the intended parents). There are two types of surrogacy:

• Traditional (or ‘straight’) surrogacy: the surrogate uses her own egg, making her the genetic mother.
• Gestational (or ‘host’) surrogacy: the surrogate has no genetic link to the child; the embryo is created using the egg and sperm of the intended parents or donors.

Is Surrogacy Legal in England and Wales?

Yes, surrogacy is legal, but commercial surrogacy is not. This means:

• Surrogates cannot be paid for their services beyond reasonable expenses.
• It is illegal to advertise that you’re looking for a surrogate or willing to act as one (although nonprofit organisations may facilitate matches).
• Surrogacy agreements are not legally binding, even if both parties sign a written contract.

Surrogacy and LGBTQ+ Individuals: A Growing Path to Parenthood

The LGBTQ+ community is increasingly turning to surrogacy to build families, particularly:

• Same sex male couples may pursue gestational surrogacy with the assistance of an egg donor.
• Transgender individuals may use surrogacy when they are unable or choose not to carry a pregnancy themselves.

The law in England and Wales has evolved to recognise same-sex couples and individuals as legal parents, however, there are important steps to follow.

Legal Parenthood

One of the key legal hurdles in surrogacy is who is considered the legal parent(s) at birth.

At Birth:

• The surrogate is always the legal mother, regardless of genetics.
• If she is married or in a civil partnership, her spouse or civil partner is the second legal parent (unless they did not consent).
• This means the intended parents have no automatic parental rights at birth.

After Birth:

To become the child’s legal parents, the intended parents must apply for a Parental Order under the Human Fertilisation and Embryology Act 2008. To be eligible, the following criteria must be met:

• The child must be genetically related to at least one of the intended parents.
• The application must be made within six months of the child’s birth.
• The child must be living with the intended parents.
• The surrogate (and her spouse/civil partner, if applicable) must consent freely and fully after the birth.
• The intended parents must be either:
  • A married couple, civil partners, or living as partners (same-sex or opposite-sex), or
  • A single person (since changes to the law in 2019).

Once a parental order is granted, the intended parents become the legal parents, and the surrogate’s name is removed from the birth certificate.

Ongoing Legal Reform

The Law Commission of England and Wales published a 2023 report recommending a major overhaul of surrogacy law. Key proposals include:

• New Pathway to Parenthood: intended parents could be recognised as legal parents from birth, subject to pre-approval.
• Clearer rules on expenses, eligibility, and safeguarding.
• Continued prohibition of commercial surrogacy.

As of mid-2025, these proposals have not yet been enacted into law, but reform is likely in the coming years.

If you feel Franklins might be the right firm to advise you on your legal position, and you would like to enquire about when an initial appointment could be scheduled, contact our Family Law team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

As we celebrate Pride, it’s a good moment to highlight how the legal landscape in the UK has evolved significantly over the years to protect the rights of LGBTQ+ individuals, but also emphasise that true equality requires continuous effort and vigilance.

Statistics and surveys indicate that a significant portion of LGBTQ+ employees still experience discrimination and harassment at work. According to Stonewall’s Workplace Equality Index, over one-third of LGBTQ+ employees have hidden their identity at work for fear of discrimination.

Legal Framework Against Gender Discrimination

The cornerstone of anti-discrimination law is the Equality Act 2010. This comprehensive legislation consolidates previous anti-discrimination laws and provides a robust framework for protecting individuals from discrimination, harassment, and victimisation based on nine protected characteristics, including sex, gender reassignment, and sexual orientation.

Under the Equality Act 2010, it is unlawful for employers to discriminate against employees or job applicants on the grounds of these protected characteristics. This includes:

• Direct Discrimination: Treating someone less favourably because of their gender identity or sexual orientation.
• Indirect Discrimination: Implementing policies or practices that, although not intended to disadvantage a particular group, disproportionately affect them.
• Harassment: Engaging in unwanted conduct related to a person’s gender identity or sexual orientation that creates an intimidating, hostile, degrading, humiliating, or offensive environment.
• Victimisation: Treating someone unfairly because they have made or supported a complaint about discrimination.

Key Protections for Transgender Individuals

One of the significant advancements brought about by the Equality Act 2010 is the specific inclusion of “gender reassignment” as a protected characteristic. This ensures that transgender individuals are safeguarded against discrimination in various aspects of employment, including hiring, promotions, and workplace conditions. Employers are required to respect the preferred gender of their employees and make reasonable adjustments to accommodate their needs.

Workplace Policies and Best Practices

Despite these legal protections, gender discrimination in the workplace remains a pervasive issue. Employers play a crucial role in fostering an inclusive environment through proactive policies and practices:

1. Diversity and Inclusion Training: Regular training sessions help raise awareness about gender issues and promote respectful behaviour among employees.
2. Inclusive Policies: Implementing policies that explicitly protect LGBTQ+ employees, such as gender-neutral bathrooms and flexible dress codes, can make a significant difference.
3. Support Networks: Establishing LGBTQ+ employee resource groups provides a support system and a platform for raising concerns.
4. Reporting Mechanisms: Clear and confidential processes for reporting discrimination and harassment are essential to address issues promptly and effectively.

Case Law and Real-World Impact

Case law highlight both the progress made and the ongoing struggles faced by LGBTQ+ individuals in the workplace. For instance, the landmark case of Taylor v Jaguar Land Rover in 2020, where a tribunal ruled in favour of a non-binary employee, underscored the importance of recognising non-binary identities under the Equality Act’s protection for gender reassignment.

Facts

• Claimant’s Background: An engineer at Jaguar Land Rover’s plant who identified as transgender, gender fluid, and non-binary from 2017.
• Workplace Issues: Faced insults, abusive jokes, and toilet facility issues based on their clothing. Received inadequate support from HR and management, who often dismissed complaints.

Decision

• Tribunal Ruling: The tribunal recognised the claimant’s gender reassignment characteristic under the Equality Act 2010, despite no surgical transition.
• Findings: The claimant experienced harassment, direct discrimination, and victimisation. They were also constructively unfairly dismissed.
• Outcome: Awarded £180,000 in damages. Jaguar Land Rover was recommended to appoint a Diversity and Inclusion Champion and conduct annual diversity reports. The tribunal criticised Jaguar Land Rover’s equality practices.

Analysis

• Legal Implications: The case affirmed that transitioning individuals are protected under the Equality Act 2010. However, the protection status for non-binary individuals not undergoing a transition remains unclear.

Takeaways

• Employer Responsibilities: To avoid discrimination claims, employers must provide comprehensive equality and harassment training, promote policies, and enforce sanctions for non-compliance.

• Creating Supportive Workplaces: Employers should foster a supportive environment for non-binary and gender fluid employees and ensure clear expectations and procedures for addressing unlawful treatment.

Moving Forward

While the legal framework in the UK provides a strong foundation for combating gender discrimination, the real challenge lies in changing workplace cultures and attitudes. Employers must go beyond compliance, actively championing diversity and inclusion to create environments where every employee, regardless of their gender identity or sexual orientation, feels valued and respected.

If you require any advice on your employment rights or how these changes may affect you, please contact our Employment Law team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk.

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Photo by Sharon McCutcheon from Pexels

The Employment Appeal Tribunal has found that an employee’s “gender-critical belief”, namely a belief that people cannot change their biological sex, represent a philosophical belief that is capable of protection under the Equality Act 2010.

The Case 

Ms Forstater was dismissed after posting a series of tweets questioning government plans to let people declare their own gender. The original tribunal found that Ms Forstater’s views were, “not worthy of respect in a democratic society”, and that her employer was justified in dismissing her. At appeal, whilst Ms Forstater’s words were found to be offensive, the Honourable Mr Justice Choudhury found that this did not stop Ms Forstater from being protected from expressing those beliefs as they “did not seek to destroy the rights of trans persons”.

This case involved two relevant sections of the Equality Act 2010:

• Section 7 of the Equality Act 2010 confirms that gender reassignment is a protected characteristic, giving protection to people who have proposed to undergo, are undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex. It is therefore unlawful to treat someone less favourably because of their gender reassignment.
• Ms Forstater was relying upon section 10(2) of the Equality Act 2010, confirming that a “philosophical belief” is also a protected characteristic.

The Decision

The decision does not mean that Ms Forstater is/was free to unlawfully harass or discriminate against trans people, but that her rights and protection under the Equality Act 2010 should also have been considered before taking any action to dismiss her.

This case represents another example of a Tribunal trying to balance the rights of employees who have the freedom to express their genuinely-held beliefs which may be offensive to some employees, versus those offended employees who have a right not to be treated less favourably because of their protected characteristics.  

Read the full story by the BBC here. 

If you need advice because you have been unfairly treated due to your own protected characteristics, or if you are an employer with employee issues, please contact Ben Stanton by email at ben.stanton@franklins-sols.co.uk or call our Employment Team on 01908 660966.