Two landmark surrogacy-related judgments this year – one a trusts case involving the Longleat Estate, the other a welfare benefits tribunal – highlight how current legislation is struggling to accommodate modern family arrangements within older legal frameworks. While neither case involved the family court, where applications for parental orders following a surrogacy arrangement are considered, they demonstrate the reach of surrogacy law and the consequent need for widespread reform.
Cator & Ors v Thynn & Anor [2026] EWHC 209 (Ch) concerned an application brought by the trustees of three family trusts connected to the Longleat Estate in Wiltshire. One of the sons – Henry – of the first defendant to the application, the Eighth Marquess of Bath, was born via a US surrogate in 2016, although he is genetically related to the marquess and his wife, the marchioness.
Longstanding traditional trust structures rely on common law definitions of terms such as ‘child’, ‘grandchild’, and ‘issue’. Archaically, ‘the status of the child [born via surrogacy] is (in law) the same as that of a child conceived in adultery’ (as approved in Re M (Child Support Act: Parentage) [1997] 2 FLR 90). This, in effect, creates uncertainty as to whether Henry can benefit from the trusts.
The application brought to the court was not for a determination on status but, rather, approval by the court of the trustees’ decision to grant the marquess the power to add Henry to the class of beneficiaries. In considering this, the court ordered that independent legal representation be appointed to ensure that all beneficiary interests are properly protected before a substantive decision on power-making is made.
The law on legal parentage in the UK is governed by the Human Fertilisation and Embryology Act 2008 (HFEA 2008). The surrogate who gives birth is always considered the legal mother at birth, regardless of whether she is genetically related to the child. If the surrogate is married or in a civil partnership, her spouse or civil partner is automatically considered the second legal parent, unless they do not consent to the surrogacy. If the surrogate is not married or in a civil partnership, the second legal parent can be the biological father. For legal parentage to be transferred to the intended parents, a parental order must be made by the court.
Although reference to a parental order was not made in Cator v Thynn [2026], HHJ Paul Matthews explained that: ‘The family trusts expressly retain the pre-1970, common law, meanings of descriptions
of family relationships…’. The case highlights how historical trust drafting can fail to accommodate children born through modern family arrangements, namely surrogacy. While terms such as ‘legitimate’ and ‘illegitimate’ in reference to children were abolished by the Family Reform Act 1987, for trust structures drafted before this time – prevalent among but not limited to aristocratic families – a legal quagmire is created for living descendants.
The HFEA 2008 states that surrogates in the UK can only be reimbursed for ‘reasonable expenses’ and cannot be paid for their services – they should not be out of pocket nor in profit. What is considered a reasonable expense is not clearly defined, but it tends to include costs directly linked to the pregnancy, such as payments for loss of income, maternity clothes, travel to hospital appointments and so on. Reasonable expenses in UK surrogacy exist to ensure that arrangements remain altruistic, as opposed to commercial, to prevent exploitation.
In PQ v Secretary of State for Work and Pensions [2026] UKUT 1 (AAC), the claimant, who had been a surrogate on two occasions, received income-based Jobseeker’s Allowance while also receiving regular monthly payments from the intended parents relating to the surrogacy arrangements. In total, she received £15,000 and £10,500 respectively from the intended parents for each pregnancy. The secretary of state decided that these payments constituted income rather than capital, leading to a recoverable overpayment of benefit. The claimant appealed this decision but was unsuccessful. The Upper Tribunal determined that the regular nature of the payments meant they were properly categorised as income, as opposed to capital or ‘volunteer expenses’.
The judgment in PQ v SSWP [2026] contradicts the public policy argument that UK surrogacy is altruistic, as the payments received by the surrogate were considered a source of income. It also highlights: potential hidden financial cost for surrogates who rely on state benefits; the need for family lawyers to signpost this issue at the outset; and for Department
for Work and Pensions policymakers to clarify the requirements for means-tested benefits.
Both cases are indicative of a growing gap between social reality and legal architecture. Remedial measures include reform in a variety of areas of the law. For example, the Law Commission, in its March 2023 report Building Families Through Surrogacy: A New Law and draft bill, set out proposals for a new, regulated pathway for intended parents to become legal parents at birth. This included a statutory list of permitted expenses, the introduction of regulated surrogacy organisations to oversee surrogacy arrangements and a new pathway to parenthood, meaning intended parents could be legal parents from birth. The government has confirmed that surrogacy reform is not currently being prioritised due to lack of parliamentary time.
Surrogacy law reform, though, is clearly not enough. As the above cases highlight, legal practitioners, public policymakers and even financial advisers need a working understanding of where and how statutory law or historical trust structures conflict with practice concerning modern families.
Shaili Gohil-Desai is an associate at Burgess Mee, London
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