The High Court’s recent decision in A & B v C & D [2026] EWHC 972 (Fam) is one of the most important surrogacy judgments in recent years. While the court was dealing with a number of parental order applications, the judgment provides wider guidance on how the courts approach surrogacy arrangements, particularly where overseas commercial surrogacy is involved.
Why are parental orders important?
When a child is born through surrogacy, the intended parents do not automatically become the child’s legal parents under English law. Instead, they generally need to apply for a parental order under the Human Fertilisation and Embryology Act 2008.
A parental order has a transformative legal effect. It transfers legal parenthood from the surrogate (and, in some cases, her spouse) to the intended parents and ensures that the child is recognised in law as their child. It also enables the issue of a Parental Order Certificate, an important legal identity document for the child.
The issue before the court
One of the central questions in A & B v C & D concerned payments made to surrogates.
English law permits payment of a surrogate’s reasonable expenses. However, many international surrogacy arrangements involve payments that go beyond expenses. The legislation provides that such payments must be authorised by the court before a parental order can be made.
Historically, the courts have balanced concerns about commercial surrogacy against the welfare of the child. The question raised in this case was whether public policy objections to commercial surrogacy can ever outweigh the child’s welfare.
The court’s answer
Mr Justice Williams concluded that when the court is deciding whether to authorise payments and make a parental order, the child’s welfare remains the paramount consideration.
The judgment carefully reviews years of previous case law and observes that, in practice, the courts have consistently authorised payments where doing so was necessary to secure the child’s welfare and legal status.
The judge went further, suggesting that purely public policy objections have little practical role to play within a parental order application if they do not directly relate to the welfare of the child concerned.
What does this mean for intended parents?
The decision is not a licence to ignore the law or to enter into surrogacy arrangements without specialist advice. The court emphasised the importance of proper planning, transparency and safeguarding.
However, the judgment does provide reassurance that the family courts remain focused on the welfare and legal security of children born through surrogacy. The court recognised that parental orders are often the most appropriate legal mechanism for reflecting the reality of a child’s family life and identity.
Practical lessons
Anyone considering surrogacy should obtain specialist legal advice before entering into any arrangement, particularly where an overseas programme is involved. Issues that require careful consideration include:
- The legal status of the surrogate and intended parents in the country of birth.
- Immigration and nationality issues.
- The structure and timing of any payments.
- The documentation required for a future parental order application.
- The arrangements for obtaining the surrogate’s informed consent.
Looking ahead
The judgment also highlights an ongoing tension within English surrogacy law. Parliament continues to favour an altruistic model of surrogacy, yet the courts are frequently dealing with international commercial arrangements.
Mr Justice Williams suggested that if Parliament wishes public policy considerations to carry greater weight in parental order cases, legislative reform may be required.
Until then, A & B v C & D is likely to be regarded as an important authority confirming that, in parental order proceedings, the welfare of the child remains at the heart of the court’s decision-making.
Need advice or support?
It is really important that early legal advice is sought on applying for a parental order in surrogacy matters, especially if the surrogate is abroad. At Branch Austin McCormick, we are here to guide you through the court process. Caroline Ford and other members of our Family Team have extensive experience in this area and all aspects of family law. If you would like to speak with Caroline, please contact her at: cf@branchaustinmccormick.com or 020 7851 0102.