Every so often, a judgment comes along that cuts through years of uncertainty and says, quite plainly, what practitioners and Intended Parents have long understood in practice. The recent decision of Mr Justice Williams does exactly that, and does so with a flourish.
Judith Harling-Coward, a surrogacy specialist in Whitehead Monckton’s Family team, explains why.
“My favourite line from the judgment captures the point perfectly,” says Judith.
‘The maintenance of the formulation that in considering the authorisation of monies the Court should consider the components identified by Hedley J has, in my view, become something akin to the ‘Emperor’s new clothes’… when both in law and in practice the birthday suit of paramount welfare is all there is to see.’
“It’s certainly rare to see judicial clarity delivered with such colour,” continues Judith, “but let’s unpack the important message here: when it comes to authorising payments made in international surrogacy arrangements, the child’s welfare is, and has long been, the paramount consideration.”
And this is very good news indeed for Intended Parents.
Why this judgment matters
In England and Wales, only altruistic surrogacy is permitted. That means Intended Parents can reimburse a surrogate for reasonable expenses, but cannot enter into a commercial arrangement here.
However, many Intended Parents choose to pursue surrogacy abroad, where commercial arrangements are legal, regulated and often the only viable route to parenthood.
When they return home with their baby, they must apply for a Parental Order – the legal mechanism that transfers parenthood from the surrogate (and their spouse, if applicable) to the Intended Parents.
As part of that process, the Family Court needs to consider whether any payments made to the surrogate go beyond what UK law considers reasonable expenses and, where satisfied, retrospectively authorise them.
This need for retrospective authorisation creates an unnecessary source of additional anxiety for many Intended Parents, who have already overcome many hurdles in their journey towards building their family.
For years, the Court has routinely granted this authorisation, recognising that Intended Parents are acting in good faith and that international surrogacy is often the only realistic option. But the legal test (based on older case law) has sometimes been interpreted as requiring a balancing exercise between public policy and welfare.
Mr Justice Williams has now made it clear: the welfare of the child is not just the first consideration; it is the overriding one.
What the Court said
The judgment confirms that:
In other words, the Court recognises the reality: Intended Parents are not acting improperly by engaging in commercial surrogacy overseas where it is lawful. They are simply doing what is necessary to build their family.
This clarity is hugely reassuring for those embarking on, or already in, an international surrogacy journey.
What this means for Intended Parents
If you are considering or currently pursuing surrogacy abroad, this judgment should give you confidence that:
It does not mean that commercial surrogacy is now permitted in the UK – it isn’t. But it does mean the Court is taking a realistic, child‑centred approach to the global nature of modern family building.
It’s also important to understand that this judgment does not mean that all payments in all cases will automatically be approved.
In making this judgment and in respectively authorising the payments, the judge highlighted that these Intended Parents had “undertaken due diligence prior to embarking on the process and have selected a jurisdiction with a strong regulatory framework which protects the interests of the surrogate mother, the child, and the Intended Parents, and where there is no real issue over the satisfaction of the conditions under Sections 54 or 54A HFEA 2008, and the welfare of the child.”
In other words, Intended Parents need to ensure that the evidence they present to the Family Court show that they have acted in good faith and in the best interests of the child, and give the reasons for any payments under consideration.
How Whitehead Monckton’s surrogacy lawyers can support you
Surrogacy, whether in the UK or internationally, is a vital route to parenthood for an increasing number of people; but it involves navigating legal systems, immigration rules if international, documentation requirements and the Parental Order process.
As specialist surrogacy lawyers, we help Intended Parents by:
This latest judgment strengthens what we have long known: the Family Court’s priority is your child’s welfare, and that is firmly on your side.
If you are planning your surrogacy journey, or need guidance on the Parental Order process, we’re here to help you navigate it with sensitivity, confidence and care.
Contact Judith to book an initial consultation.
Or come and meet Whitehead Monckton’s experts in surrogacy and all aspects of Family law – Judith, Daniel, Emma and Isabelle – on stand E14 at The Fertility Show on 16 and 17 May 2026
