Cambridge Family Law Practice

The High Court has recently clarified how the Family Court should approach payments made under surrogacy arrangements when deciding whether to make a parental order.

In A and B v C and D [2026] EWHC 972 (Fam), Williams J held that “pure” public policy considerations have no legitimate role in the court’s decision whether to authorise payments exceeding reasonable expenses under section 54(8) of the Human Fertilisation and Embryology Act 2008. The court’s focus must instead be on the child’s welfare, which is the paramount consideration.

A parental order is the order that transfers legal parenthood from the surrogate, and sometimes her spouse or civil partner, to the intended parent or parents. It gives legal security to the child and recognises the family arrangement in which the child is being raised. Where money or other benefits have been given in connection with the surrogacy arrangement, the court must consider those payments. Payments beyond reasonable expenses require the court’s authorisation.

The courts have traditionally considered three questions, derived from Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam):

1. Were the payments disproportionate to reasonable expenses?
2. Were the applicants acting in good faith and without moral taint?
3. Was there any attempt to defraud the authorities?

Those questions reflected the court’s concern not to endorse arrangements contrary to public policy, particularly commercial surrogacy. However, in practice, the courts have been reluctant to refuse parental orders where doing so would harm the child’s welfare. Williams J redirected the focus on the child’s welfare, being the court’s paramount consideration. That reminds us that public policy cannot be weighed separately against welfare as an independent reason to refuse authorisation.

Public policy concerns may still matter, but only where they have a bearing on the child’s welfare. For example, the court may still examine:
• the scale and nature of the payments;
• whether the applicants acted honestly and transparently;
• whether the surrogate gave genuine and informed consent;
• whether there was exploitation, coercion or deception;
• whether proper legal and practical safeguards were followed; and
• whether the applicants’ conduct raises concerns about parental suitability or risk of harm to the child.

The key point is that these issues are relevant because of what they may reveal about welfare, not because the court is applying a separate public policy test.

Jeremy Ford, a partner here at Cambridge Family Law Practice, comments: “This judgment is an important recalibration of the court’s approach. It does not remove scrutiny of surrogacy payments or the circumstances of the arrangement. Rather, it requires that scrutiny to be directed to the child’s welfare, the integrity of the process and the suitability of the intended parents. For intended parents, transparency remains essential. The court will expect a full explanation of the arrangement, the payments made, the advice obtained and the safeguards followed. Williams J also observed that section 54 has been read down so extensively by the courts that the statutory wording no longer fully reflects how the law operates in practice. That may add further momentum to calls for reform of surrogacy law.”