Surrogacy, reasonable expenses, and the making of Parental Orders: an update

The recent decision by Mr Justice Williams in A & B v C & D (2026) provides an update on how courts should decide whether to authorise payments to surrogates that exceed ‘reasonable expenses’ under section 54(8) of the Human Fertilisation and Embryology Act 2008.

Reasonable expenses

Section 54(8) provides that the court must be satisfied that no money or other benefit, other than ‘reasonable expenses’, has been given or received by the surrogate.

It has been observed in previous cases that there is no definition of reasonable expenses within the legislation, and the issue has therefore been determined on a case-by-case basis, leaving intended parents to grapple with the question of what constitutes a reasonable expense. Please see our previous article for what is likely to qualify as a reasonable expense: surrogacy — permitted payments and reasonable expenses.

If the court finds that money has been paid to a surrogate which exceeds reasonable expenses, they have discretion to retrospectively authorise such payments but, again, the legislation provides no guidance as to when a judge may give this approval. Traditionally, courts have used a balancing exercise between the child’s welfare and public policy against commercial surrogacy.

Welfare principle

Mr Justice William’s rejected this traditional approach stating that the child’s welfare is the paramount consideration not just one factor and therefore it cannot be balanced against public policy concerns.

Whereas previous cases treated public policy as something that might outweigh the child’s welfare in extreme cases, Mr Justice Willaims stated that this is wrong and that a paramount welfare test leaves no room for competing policy factors. He suggested that the previous approach had become unrealistic as the court had never refused a parental order on public policy grounds.

The factors proposed by HHJ Hedley in X & Y (Foreign Surrogacy) [2009]1 FLR 733 that should be considered when determining whether to authorise the payments still matter but are reframed as welfare issues not policy issues:

1. Whether payments were excessive;
2. Whether the intended parents acted in good faith; and
3. Whether was deception or exploitation

These factors are now relevant only insofar as they affect the child’s welfare and the suitability of the parents. As such the court will almost always grant parental orders unless welfare concerns arise. Courts should continue to carefully scrutinise exploitation of the surrogate, reckless or unlawful arrangements and dishonesty by the intended parents. Whether the intended 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 but on welfare grounds not public policy.

Parental Orders

There are of course other factors that the court must consider when deciding whether to make a parental order, but this decision clarifies the position on reasonable expenses. It confirms what has already been happening in practice that the child’s welfare is paramount in the court’s decision whether to grant a parental order and highlights the gap between the wording of the legislation and how courts apply it, further supporting the need for reform in this area.

The practical takeaways from the decision for intended parents are that they should set out clear and detailed evidence of all payments made to the surrogate and organisations involved and demonstrate that they have acted in good faith, following the law in the other countries involved and made responsible decisions to safeguard the welfare of their surrogate and their child.