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The judgment in A&B v C&D [2026] EWHC 972 (Fam), handed down by Mr Justice Williams on 27 April 2026, concerned nine parental order applications which were listed before him for final hearings earlier this year. Rather than deciding each case on its individual facts, the judge took the unusual step of deferring decisions on all nine applications while he went back to basic principles to consider the court’s role and approach to parental orders.
The role of public policy and payments
The most significant aspect of the judgment concerns the longstanding question of how the court should balance the need to retrospectively authorise payments made in commercial surrogacy arrangements against the welfare of the child. The legislation requires the court to be satisfied that the applicants have not given or received payments other than for expenses reasonably incurred, unless authorised by the court. Despite its intent to discourage commercial surrogacy, the law explicitly gives the court the power to authorise payments retrospectively, and this is what has enabled parental orders to be made in thousands of cases since the very first in 2008.
Until now, all parental order applications have followed the principles first set out by Mr Justice Hedley in the earliest international surrogacy cases, under which the court undertook a “balancing exercise” weighing public policy regarding commercial surrogacy on one hand against the welfare of the child on the other. In practice, however, no parental order has ever been refused due to the level of payments made.
Mr Justice Williams has now concluded that, if the child’s welfare is paramount, which is what the law explicitly requires, then “pure” public policy questions about commercial payments are not a legitimate part of the balance at all: “Since welfare became paramount in Parental Order applications … 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.”
Whether the parents have behaved legally, responsibly and engaged in surrogacy ethically remains at the core of the court’s decision-making. Mr Justice Williams has reframed consideration of the wider context as a welfare consideration rather than a public policy one. Parents who enter into illegal or ill-advised international surrogacy arrangements which cause legal and immigration difficulties for their child, or who show a disregard for the welfare of the surrogate, may ultimately be deemed by the court not to be fit parents.
Practical guidance for intended parents
The judgment sets out clear practical expectations for parents applying for parental orders. In particular, parents should:
- Set out very clear and detailed evidence of all payments made to the organisations involved and the surrogate, ideally in a table separating expenses from sums the court is being asked to authorise.
- Demonstrate in their evidence that they have acted in good faith, followed the law in the country of birth, and made responsible decisions to safeguard the welfare of both the surrogate and the child.
Cases in which these principles are followed should be resolved straightforwardly at the first High Court hearing. However, there will be a small number of cases in which the court will take a more rigorous approach, appointing separate legal representation for the child and making careful enquiries over several hearings as to whether the parents are fit to be treated as their child’s legal parents. These will be cases in which there is concern about the welfare of the surrogate or in which parents have taken reckless decisions to enter into legally dubious arrangements.
How DMH Stallard can help
This judgment reinforces the importance of obtaining specialist legal advice at the earliest possible stage when considering international surrogacy. Expert guidance before, during and after the surrogacy process is essential to ensure that intended parents act in accordance with the law and the court’s expectations, giving them the best prospect of a smooth parental order application.
Our Family Law team has significant experience advising on surrogacy matters and parental order applications. If you are considering surrogacy or need advice on an existing arrangement, please do not hesitate to contact us.
