Surrogacy law in England and Wales is at an important point of change. A recent High Court decision has clarified how judges should approach commercial surrogacy payments, while proposed reforms could eventually allow some intended parents to become legal parents from the child’s birth.

The next significant political milestone is a parliamentary debate scheduled for 7 September 2026, concerning recognition of intended parents from birth in eligible surrogacy arrangements. However, the law has not changed yet. Intended parents must continue to follow the existing parental order process.

This article explains what A & B v C & D [2026] EWHC 972 (Fam) means, how parental orders currently work, and what practical steps intended parents should take.

What did A & B v C & D decide?

The case involved parental order applications following international commercial surrogacy arrangements. The intended parents had made payments to surrogates which went beyond what might ordinarily be regarded as “reasonable expenses”.

Under section 54 of the Human Fertilisation and Embryology Act 2008, the court must consider whether payments or benefits given in connection with the surrogacy should be authorised. The legislation generally distinguishes between reasonable expenses and wider commercial payments.

The High Court confirmed a crucial principle:

When deciding whether to authorise payments in a parental order case, the child’s welfare throughout their life is the court’s paramount consideration.

The court also explained that pure public policy objections to commercial surrogacy cannot be weighed against the child’s welfare in that decision. In other words, the court cannot refuse an otherwise appropriate parental order simply because it disapproves of commercial surrogacy in principle.

This does not mean that financial arrangements are irrelevant or that any payment will automatically be approved. The court can still examine:

• Whether the intended parents acted honestly and in good faith;
• Whether the surrogate was exploited, pressured or harmed;
• Whether the arrangement was properly understood by everyone involved;
• Whether the intended parents have been open about the payments;
• Whether the child’s welfare supports the making of the order; and
• Whether there are other concerns about the circumstances of the arrangement.

Those matters remain relevant because they may affect the child’s welfare. The distinction is important: public policy cannot operate as a freestanding reason to defeat welfare, but conduct involving exploitation, coercion or dishonesty may be highly relevant to the welfare assessment.

You can read the High Court judgment in A & B v C & D for the full reasoning.

What is a parental order?

A parental order is a court order which transfers legal parenthood from the surrogate, and in some circumstances her spouse or civil partner, to the intended parent or parents.

Once made, the order generally:

• Makes the intended parent or parents the child’s legal parents;
• Gives the intended parents parental responsibility;
• Removes the surrogate’s legal parenthood;
• Deals with the parental responsibility of any other legal parent; and
• Allows a new birth certificate to be issued naming the intended parents.

A parental order is therefore not simply an administrative document. It changes the child’s legal family relationship and can affect nationality, inheritance, medical decision-making, identity documents and future legal rights.

Without a parental order or another recognised legal route, the intended parents may not be the child’s legal parents in England and Wales, even where one of them is genetically related to the child.

How does surrogacy currently work in England and Wales?

Under the law as it stands in 2026, the woman who gives birth is the child’s legal mother. This is the position regardless of whether the child is genetically related to her.

If the surrogate is married or in a civil partnership, her spouse or civil partner may also be treated as the child’s legal parent, subject to the circumstances of conception and the relevant fertility clinic documentation.

The intended parents must usually apply for a parental order after the birth. The main requirements include:

• The application must normally be made within six months of the child’s birth;
• The child must be living with the intended parent or parents;
• At least one intended parent must generally have the required genetic connection to the child;
• The intended parent or parents must satisfy the statutory age and relationship requirements;
• The relevant domicile or connection requirements must be met;
• The surrogate must give free, full and unconditional consent; and
• The court must be satisfied about payments made in connection with the arrangement.

The surrogate’s consent cannot usually be given until at least six weeks after the birth. This creates a period during which the intended parents may be caring for the child but do not yet have the full legal status they expect to hold permanently.

International arrangements can involve additional issues, including immigration permission, passports, nationality, recognition of foreign documents and travel. A parental order may still be required in England and Wales even where the intended parents are recognised in the country where the child was born.

Why transparent financial records matter

The decision in A & B v C & D makes early and complete financial records particularly important.

Intended parents should keep a clear record of every payment or benefit connected with the arrangement. This may include:

• Payments made directly to the surrogate;
• Agency or facilitator fees;
• Medical and travel expenses;
• Accommodation costs;
• Insurance payments;
• Legal and professional fees;
• Gifts or other benefits; and
• Payments made to third parties on the surrogate’s behalf.

Records should identify the date, amount, recipient, purpose and method of payment. Bank statements, invoices, receipts, written agreements and correspondence should be retained securely.

Do not assume that a payment is unimportant because it was made informally or in cash. If the court asks about the arrangement, incomplete records can create avoidable concern and delay.

Intended parents should also avoid attempting to disguise a commercial payment as an expense. Full and frank disclosure is usually safer than trying to present an arrangement as something it was not.

A solicitor can help prepare a financial schedule and supporting evidence explaining the payments in their proper context. The objective is not to conceal the commercial elements of an arrangement, but to give the court an accurate account and demonstrate that the child’s interests have remained central.

The reform proposal: legal parents from birth

The Law Commission of England and Wales and the Scottish Law Commission have proposed a new legal framework for surrogacy. The central idea is a regulated pathway through which intended parents could become the child’s legal parents from birth, provided that safeguards had been followed before conception.

The proposals include:

• Screening and safeguarding before the arrangement proceeds;
• Independent legal advice for the surrogate and intended parents;
• Counselling and informed consent;
• Oversight by regulated, non-profit surrogacy organisations;
• A formal surrogacy agreement; and
• A right for the surrogate to object or withdraw consent within a defined period.

Parental orders would still be needed for arrangements outside the new pathway, including many international arrangements or cases where the proposed safeguards had not been met.

The proposed reforms are not currently law. Until Parliament passes legislation and it receives Royal Assent, intended parents should plan on the basis that the existing post-birth parental order process remains necessary.

What is the 7 September 2026 parliamentary debate about?

On 7 September 2026, MPs are expected to debate an e-petition calling for intended parents in eligible surrogacy arrangements to be recognised as legal parents from birth.

The debate may increase political pressure for the Government to reconsider the Law Commission’s proposals. It may also highlight concerns about the current period of legal uncertainty after birth, including the fact that intended parents may be raising the child before their legal status is finalised.

However, a Westminster Hall debate does not change the law by itself. It cannot replace the parental order process or remove the statutory requirements currently imposed by the Human Fertilisation and Embryology Act 2008.

Intended parents should therefore treat recognition from birth as a possible future reform, not as a right currently available.

What do the Law Commission’s kinship care proposals have to do with surrogacy?

The Law Commission’s 2026 proposals on kinship care concern a different area of family law, but they reflect a similar movement towards clearer and earlier recognition of the people caring for children.

The proposals include a possible Kinship Care Order and Kinship Parental Responsibility Agreements. These would aim to give relatives and other connected carers a clearer legal status, reduce reliance on overlapping orders and make it easier for carers to deal with schools, healthcare providers and public authorities.

The proposals place the child’s welfare at the centre of decisions and seek to make parental responsibility more practical and accessible.

They do not currently change surrogacy law. Their wider significance is that family law reform is increasingly focused on:

• The child’s welfare and stability;
• Clear legal responsibility from an early stage;
• Practical decision-making for the adults caring for children; and
• Reducing unnecessary procedural uncertainty.

Those same themes can be seen in the proposed surrogacy pathway and in the reasoning of A & B v C & D.

A practical checklist for intended parents

If you are considering surrogacy or preparing a parental order application, consider taking these steps:

1. Obtain specialist advice before conception, particularly if the arrangement is international or involves significant payments.
2. Check the parental order criteria early, including genetic connection, domicile, relationship status and the six-month time limit.
3. Record every payment and expense connected with the arrangement.
4. Keep evidence of informed consent, legal advice, counselling and medical arrangements.
5. Do not delay after the birth. The application timetable is important.
6. Prepare for the consent process, including the fact that consent cannot usually be given before six weeks after birth.
7. Take immigration and nationality advice for any child born outside the UK.
8. Do not rely on proposed reforms until they become law.
9. Be open about difficulties, including unexpected payments, changes to the arrangement or concerns involving the surrogate.
10. Focus on the child’s lifelong welfare, which remains the central consideration for the court.

How Tyndel Solicitors can help

Surrogacy and parental order applications involve sensitive family relationships, strict legal requirements and, increasingly, cross-border financial and immigration issues. Early advice can help intended parents understand their legal position and reduce the risk of delay or complications after the child’s birth.

Tyndel Solicitors advises individuals and families across England and Wales on family law matters, including child-related applications, financial orders and complex family arrangements. Our family law solicitors UK team provides clear, practical guidance tailored to your circumstances.

If you need advice about a parental order, international surrogacy arrangement or another family law matter, contact Tyndel Solicitors’ Family Law team.

You may also wish to read our article on The Fairer End to Relationships Reform and qualifying nuptial agreements and our guide to protecting assets through a financial order.

This article is for general information only and does not constitute legal advice. Surrogacy law is fact-sensitive, and you should obtain advice on your individual circumstances before entering into an arrangement or making an application.