During Surrogacy Awareness Week (1st-7th August), Stowe Family Law partner Gemma Davison explores the recent High Court judgment in A&B vs C&D, which examined the conflict between public policy and parental orders in international surrogacy cases where commercial surrogacy arrangements have been used.
Commercial surrogacy in the UK is illegal on the basis it goes against public policy, whereby the surrogacy must take place for altruistic reasons only. The seriousness of this perhaps can be demonstrated by the fact that a lawyer who prepares a surrogacy agreement for a fee would be committing a criminal offence, as it would be undertaken as a commercial activity.
Nonetheless it is well known and accepted that payments are made to surrogates in nearly all surrogacy arrangements. Section 1(4) of the Surrogacy Arrangements Act 1985 says that in determining if a surrogacy arrangement has taken place, “regard may be had to the circumstance as a whole (and, in particular, where there is a promise or understanding that any payment will or may be made to the woman or for her benefit in respect of the carrying of any child in pursuance of the arrangement, to that promise or understanding).”
Valid expense
The question then becomes how to rationalise and validate these expenses in such a way that they are not considered a commercial transaction. Section 54 of the Human Fertilisation and Embryology Act 2008 sets out the criteria which intended parents must meet for a parental order to be made to transfer parenthood from the surrogate mother to the intended parents. In respect of payments Section 54(8) says:
“The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the applicants for or in consideration of— (a)the making of the order, (b)any agreement required by subsection (6), (c)the handing over of the child to the applicants, or (d)the making of arrangements with a view to the making of the order, unless authorised by the court.”
Two significant issues arise with this approach. Firstly, what is meant by expenses reasonably incurred? And secondly, what considerations should the court have in mind when asked to authorise such payments? Particularly when faced with circumstances where those payments have already been made and the decision the court makes has a profound impact of the legal parenthood and welfare of that child.
A&B v C&D [2026] WEHC 972 (Fam) – a case analysis
This was most recently considered in A&B v C&D [2026] WEHC 972 (Fam): Mr Justice Williams sought to tackle the issue and reconcile the tension between public policy and the welfare of a child.
First and foremost, the judgment confirms that the child’s welfare is the paramount consideration of the court, as shown at paragraph 73:
“However since welfare became paramount in Parental Order applications, and certainly as our approach to paramount welfare has developed through the authorities outlined above, it seems to me they make clear that ‘public policy’ can play no part in a paramount welfare determination, and that if one were to weigh public policy issues in the decision-making it would be wrong as a matter of law….”
There are no recorded instances where a court has refused the authorisation of payments to a surrogate, something noted in this judgment. It is hard to envisage a situation in which the child’s welfare would not require the court to authorise expenses and make a parental order that was otherwise in the child’s best interest.
However, there may be examples in which the behaviour of the intended parents may be relevant to the welfare exercise that the court is required to undertake. For example, where there is clear exploitation of a surrogate or commodification of a child in bad faith.
A clearer path for courts and parents
Consequently, Mr Justice Williams set out a clearer path for the courts to follow, with practical guidance for intended parents.
At paragraph 80 he sets out no fewer than 21 questions for intended parents to consider when entering into a surrogacy arrangement. The answers to these questions could – and arguably should – be recorded in a surrogacy agreement.
He advises intended parents to categorise the payments to assist the court in their analysis and authorisation of such payments, ideally in a table format that shows clear and detailed evidence of all payments made to the organisation involved and the surrogate, preferably in a table separating expenses from sums the court is being asked to authorise. They should also demonstrate that they have acted in good faith, followed the law in the country of each party, and made responsible decisions to safeguard the welfare of the child and surrogate.
Agreements and records
Agreed expenses should be recorded in the surrogacy agreement and the intended parents should keep clear and detailed records of all payments made.
The payments would fall into one of three categories. Where there is no issue with the satisfaction of the section 54 criteria and the intended parents can demonstrate proper preparation before embarking on the process of surrogacy with all parties’ welfare in mind, the court may well be in a position to grant a parental order at the first hearing.
Where the intended parents have done their due diligence but there is an issue with the satisfaction of one of the section 54 criteria, the court may be able to make an order at the first hearing, but it may need to direct further evidence be provided and/or list a longer hearing.
Where there is a major issue with the satisfaction of the section 54 criteria or there are real concerns about the intended parents’ ability to meet the welfare needs of the child, the judge will need to direct further evidence and list a further hearing in order to determine whether a parental order is in the interests of the child’s welfare.
Attention to detail
Intended parents must ensure they consider expenses carefully at the outset. All surrogacy arrangements should be undertaken with care and attention to all concerned, with clearly recorded details of everything that has been agreed, including detailed information about expenses.
There are no plans for the current government to allow any form of surrogacy which may be considered a commercial transaction. However, significant issues remain with the current laws surrounding surrogacy, for which the Law Commission has made recommendations. And, following a petition, a debate will be held in parliament on 7th September on the issue of recognising intended parents from birth.
However, we remain a very long way from any planned changes.
About the author
Gemma Davison is a partner at Stowe Family Law. She covers all aspects of family law, including divorce and separation, complex financial remedies and children matters. She leads the Modern Family team at Stowe as a specialist in surrogacy and fertility matters, including international surrogacy arrangements. Gemma is an accredited mediator and collaborative lawyer and aims to resolve all disputes outside of court proceedings.
