New High Court judgment on how judges should approach international surrogacy

A new case from the High Court (A&B v C&D (2026)) has re-articulated the framework for judges to apply when hearing parental order applications following international surrogacy. NGA Law is delighted to have represented one of the families involved and helped shape this important new judgment.

It comes from Mr Justice Williams, a High Court judge new to hearing surrogacy cases following the court’s recent decision to list parental order applications in front of a broader range of High Court judges. His 61-page judgment concerns nine parental order applications listed before him, on which he collectively deferred decisions while he reconsidered the court’s approach generally. Unusually, his judgment sets out no facts about the specifics of the cases involved, but instead addresses two questions of general principle:

1. What are parental orders and why are they needed?

Mr Justice Williams has confirmed that, unlike in adoption law, there is no clear route by which the UK court can (either automatically or by order) recognise an overseas parentage order or birth certificate following surrogacy. Under UK law the surrogate and her spouse are therefore the child’s legal parents.

Parental orders are the statutory solution, and the judgment sets out meticulously what a parental order does in transferring legal parenthood and parental responsibility to the intended parents, conferring British nationality on the child and enabling access to parental leave. It also importantly emphasises that parental orders are made bespoke for surrogacy, and are the only post-birth court order which can trigger the issue of a birth certificate to recognise a child as the natural child of their parents.

Parental orders therefore remain the best UK legal solution for children born through surrogacy, and are necessary if parents wish to be their child’s legal parents in the UK.

2. How should the court balance the need to retrospectively authorise any payments made with the welfare of the child?

The bulk of the judgment addresses this question. The legislation on parental orders requires the court to be satisfied that the applicants for a parental order have not made payments other than for expenses reasonably incurred, unless those payments are authorised by the court. Despite its intent to discourage commercial surrogacy, section 54(8) explicitly gives the court the power to authorise payments of more than expenses, and this is what has enabled parental orders to be made in thousands of parental order applications following international commercial surrogacy arrangements since the very first in 2008.

Mr Justice Williams extensively reviewed the longstanding case law on how this power to authorise payments works. All parental order applications to date have followed the principles first set out by Mr Justice Hedley in the first three international surrogacy cases heard between 2008 and 2010 (in two of which we acted for the parents).  Based on those original cases, the court has always undertaken what it describes as a ‘balancing exercise’, weighing public policy regarding commercial surrogacy on the one hand against the welfare of the child on the other, and scrutinising whether the parents have acted in good faith and whether there is any suggestion the surrogate was exploited. However, in practice, no parental order has ever been refused by the court. Given how inevitable parental orders appear to be, Mr Justice Williams therefore explored the dynamic of this so-called balancing exercise, asking in what circumstances the court could ever refuse a parental order.

His judgment concludes that, if the child’s welfare is paramount (which is what the law explicitly says), public policy against commercial surrogacy is not relevant to the court’s consideration. However, that is not as significant a shift as it may sound, since he says the court should continue to scrutinise carefully whether the parents have acted in good faith and whether there is any concern the surrogate was exploited or harmed, since these are welfare considerations which help the court determine whether they are parents who have put their children’s needs first. This is therefore more a reframing than a reworking: whether the parents have behaved legally, responsibly and engaged in surrogacy ethically is still at the core of the court’s decision-making, and there may be cases in which a parental order could be refused.

In simple terms, parents who enter into illegal or ill-advised advised arrangements which create legal/ immigration difficulties for their child at birth, or parents who show a complete disregard for the welfare if the woman who has carried their child, may not be deemed fit parents. Mr Justice Williams reiterates the list of sensible questions every intended parent should ask before embarking on international surrogacy started by Mrs Justice Theis and endorsed and expanded by President McFarlane and Mrs Justice Knowles (see our blog on this). He reiterates the court’s previous warnings that parental orders may be refused if parents disregard this advice.

So has anything changed?

This is a reframing rather than a revolution but the practical takeaways from the judgment are that (particularly for any cases listed before this judge) parents should:

• Set out very clear and detailed evidence on all the payments made to the surrogate and organisations involved (ideally in a table, separating out what is expenses and what 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 their surrogate and their child, following the guidance set out by Mrs Justice Theis and others.

Cases which adhere to this should be resolved straightforwardly at the first High Court hearing (which is what commonly happens already), albeit that Mr Justice Williams said that some cases involving questions over domicile or applications made beyond the six month time limit may need a longer hearing and possibly oral as well as written evidence.

There will, however, be a small number of cases in which the court should take a much more rigorous approach, appointing separate legal representation for the child and making careful enquiries as to the parents’ conduct, likely over several hearings. These will be the cases in which there is concern about the welfare of the surrogate and/or in which parents have taken reckless decisions to enter into legally dubious arrangements. Examples include some of the recent reported cases involving agencies in Northern Cyprus, and anonymous surrogacy arrangements in Nigeria.

Intended parents be warned: the court expects you to be cautious and responsible.