A & B v C & D: High Court rules public policy has no place in parental order authorisation decisions

In a significant judgement handed down on 27 April 2026, Mr Justice Williams has departed materially from the approach taken by other Family Division judges on a question that has shaped surrogacy litigation for over a decade: the proper role of public policy when a court is asked to authorise payments made in excess of reasonable expenses under section 54(8) of the Human Fertilisation and Embryology Act 2008.

The case consolidated nine parental order applications heard across four days in March 2026. Parental orders were granted in each, but the judgement's significance lies in the reasoning rather than the outcomes.

The legal question

Section 54(8) HFEA 2008 prohibits payments beyond reasonable expenses in connection with a surrogacy arrangement unless authorised by the court. Since at least Re X and Y (Foreign Surrogacy) [2008] EWHC 3030, courts have approached that authorisation decision by weighing public policy considerations against child welfare. The three questions posed by Hedley J — whether the sum paid was disproportionate to reasonable expenses, whether the applicants acted in good faith and without moral taint, and whether there was any attempt to defraud the authorities — have been applied consistently ever since.

The shift came in 2010, when the Human Fertilisation and Embryology (Parental Orders) Regulations elevated child welfare from a "first consideration" to the "paramount consideration". Hedley J himself acknowledged in Re L [2010] EWHC 3146 that this moved the balance "decisively in favour of welfare", yet retained the view that egregious public policy abuses might still tip the scales against an order.

The court's finding

Williams J held that this residual role for public policy is legally wrong. Drawing on the classic formulation of paramountcy in J v C [1970] AC 668 and the analysis of Sales LJ in FAS v Secretary of State for the Home Department [2016] 2 FLR 1035, the court reasoned that a paramount welfare determination admits no legitimate balancing against pure public policy. Once welfare is paramount, it "rules upon and determines the course to be followed" — it does not merely outweigh competing considerations, it displaces them.

The judgement observes bluntly that no reported case has ever declined to authorise payments, even in egregious circumstances, and that maintaining the language of public policy scrutiny has become, in the court's words, something akin to the "Emperor's new clothes". If Parliament wishes the court to weigh public policy in these decisions, it should amend the legislation — specifically section 1(7) of the Adoption and Children Act 2002 as applied by the 2018 Regulations — to say so expressly.

What replaces the public policy framework

The three Hedley J questions do not disappear, but their justification is recast entirely. Proportionality of payments, good faith, and honest dealing with the authorities remain relevant — not as public policy markers, but insofar as they bear on the welfare of the individual child. Exploitation of a surrogate or commodification of a child will, in most cases, also reflect on the suitability of the intended parents and any harm or risk of harm to the child. The conduct that mattered under the old framework will often continue to matter, but for different reasons.

The judgement also addresses the dissonance between section 54 HFEA 2008 as enacted and as applied. The six-month time limit, the "husband and wife" formulation, the requirement that the child's home be with both applicants, and now the public policy dimension of payment authorisation have each been substantially modified by judicial interpretation. Williams J notes this presents a real access-to-justice problem: a lay person reading the statute would be materially misled about its practical effect.