Welfare always prevails? The implications of A & B v C & D [2026] EWHC 972 (Fam) for UK domestic and overseas surrogacy

Surrogacy as a way of starting or building a family has grown significantly in popularity in recent years. Between 2011 and 2025, the number of parental orders granted to recognise the legal parentage of children born through surrogacy in the UK grew from 117 to 537, and in 2025 a record 723 applications for parental orders were made.

However, the approach to such applications and the requirements for the granting of a parental order set out at sections 54/54A of the Human Fertilisation and Embryology Act 2008 (respectively HFEA 2008 and the section 54 criteria) remain inconsistent in practice. Enter A & B v C & D [2026] EWHC 972 (Fam) (A v C), in which Mr Justice Williams seeks to clarify the framing of certain legal principles and provide practical guidance as to how applications for parental orders should be approached. This article explores the reasoning and key takeaways from this latest attempt to make sense of UK surrogacy law. 

Analysing expenses: a welfare framing and guidance on evidence

Williams J, having considered the approach of the Court to decisions to authorise payment to surrogates in excess of what is reasonable, concludes that this too is subject to the principle that the welfare of the child is the paramount consideration. Most previous ‘public policy’ tests are therefore better rationalised as being rooted in the child’s welfare or other section 54 criteria, such as the requirement for the surrogate to give free and informed consent to the making of the parental order. Considerations of ‘pure public policy’ must be excluded from consideration, though it is unclear what Williams J means by this.

He notes that there is no recorded instance in case law of a judge refusing to authorise excessive expenses and indeed, 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 interests. This makes it very difficult for judges to enforce limitations on payments, as observed in the Law Commission’s and Scottish Law Commission’s 2023 Report, “Building families through surrogacy: a new law” (the Law Commission’s 2023 Report).

Practical guidance

In practice, to streamline the Court’s analysis of expenses, Williams J recommends that intended parents seeking authorisation of any payments categorise all payments as follows:

• money or benefits which are not caught by section 54(8)/54A(7) HFEA 2008 and which therefore do not need to be considered by the Court;
• money or benefits which constitute reasonable expenses; and
• money or benefits which exceed what is reasonable.

He suggested presenting this information in the form of a table identifying which category each payment falls into to enable the Court to identify which sums need to be authorised. This places greater onus on intended parents to maintain accurate and detailed financial record-keeping and intended parents should be mindful of this from the outset of their surrogacy arrangements.

Intended parents should do their due diligence

At paragraph 80 of his judgment, Williams J lists 21 questions from various judgments that intended parents should address in their evidence in order to demonstrate their focus on the welfare of the child and surrogate and their suitability as parents. These questions examine the planning intended parents undertake prior to entering a surrogacy arrangement and address matters such as the legal framework in the relevant country and plans for the child’s future welfare. Intended parents should address all of these factors explicitly or in general terms through their witness statements to demonstrate consideration of the child’s welfare.

This guidance places an expectation on intended parents to consider their surrogacy arrangements carefully before entering them. Those who fail to do so risk being seen as focused more on their own interests than on the welfare of the child or surrogate and “are likely to face a much more rigorous testing” by the Court. 

Williams J envisaged three categories of case depending on the evidence presented:

1. 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.
2. 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.
3. Where there is a major issue with the satisfaction of the section 54 criteria and/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.

Whether other judges will adopt this approach remains to be seen, but it could streamline the process for parents who plan well from the outset.

Form A101A doesn’t sit well with foreign surrogacy arrangements

Form A101A provides for the surrogate to give consent to the parental order and contains wording confirming that “[The surrogate has] not received any payment or reward from any person making arrangements for the parental order for my child.” Williams J felt that this wording was often inappropriate for foreign surrogacy arrangements, given that they often involve an element of compensation for the surrogate. He suggests parties cross out this wording or insert additional wording to reflect that payments were made for which the Court’s authorisation will be sought. It is unclear whether other judges will accept this approach or whether amending the court-approved wording on Form A101A will incur criticism from other judges, putting intended parents in a difficult position in the interim.

Time limits may not be extended if delays have knock-on effects

Applications for parental orders must be brought within 6 months of the birth of the child (section 54(3)/54A(2) HFEA 2008), but case law has established that applications may be made outside this time limit where a parental order is in the best interests of the child. 

A parental order confirming the legal parentage of a child born through surrogacy is generally in the child’s best interests because parentage is core to the child’s identity. The later an application is made, the greater the risk of issues with the satisfaction of the section 54 conditions. If delay were to lead to evidential difficulties in determining whether, e.g. the surrogate consented to the order, the Court might consider that the need to look to exceptions because of the delay is itself a justification to refuse to extend time. However, it is difficult to see a court refusing to extend a time limit unless the delay is so great it raises concerns about the ability of the intended parents to meet the child’s welfare needs.

Conclusion

This judgment seeks to renew the Court’s focus on the welfare of the child with a view to reconciling previous case law. This results in greater expectations on intended parents to give proper consideration to their surrogacy arrangements from the outset, particularly when entering into foreign surrogacy arrangements. Applicants for parental orders will have to front-load work, preparing a comprehensive witness statement addressing pre-surrogacy considerations and expenses. However, if Williams J’s approach catches on, diligent intended parents may be rewarded by a streamlined court process. 

Parental orders are considered the best orders to accurately reflect the reality of a family formed through surrogacy arrangements; no other order can be so bespoke. Given how core a child’s parentage is to their identity and wellbeing, it is fitting that welfare is the paramount consideration in the making of the order. However, absent exceptional concerns, the Court’s ability to enforce statutory restrictions is significantly curtailed as a result. This judgment drives home the need for further legislation highlighted in the Law Commission’s 2023 Report, but in the absence of political appetite, this may not be forthcoming any time soon.

For now, welfare prevails.