Surrogacy, parenthood and the limits of traditional trusts

Many families rely on long-standing wealth planning structures, such as trusts. But as family formation has changed, the law hasn’t necessarily kept up to recognise these different pathways to parenthood.

At any stage of wealth planning, whether creating new structures or updating existing ones it’s important for settlors, trustees, beneficiaries and their advisors alike to consider the definitions used for family relationships and how they may impact upon wealth planning structures.

In Cator v Thynn [2026] EWHC 209 (Ch), the Seventh Marquess of Bath had to grapple with the fact that pre-existing family trusts might not recognise his second son, Henry, who had been born through surrogacy in the US, as falling within the class of beneficiaries. Although the trusts had been established within the Marquess’ lifetime (in 2004 and 1987 respectively) they expressly retained pre-1970 definitions of family relationships, such as child and issue. The precise definitions used in the trust aren’t detailed in the case, but it was clear there was doubt as to whether or not Henry would fall into the class of beneficiaries despite being recognised as the Marquess’ legal son in the jurisdiction of England and Wales.

Many long‑established trusts continue to rely on traditional common‑law definitions of terms such as “child”, “issue” and “descendant”. It isn’t likely that these definitions were deliberately preserved to exclude children born through surrogacy or other modern family‑building methods. It’s more likely the case that surrogacy, IVF and international fertility arrangements weren’t part of the legal landscape, so there was no perceived need to define beneficiaries in broader or more flexible terms.

Why was this in court?

The substantive application before the court sought approval for the trustees’ proposed use of their power of advancement, which would allow the Marquess to add Henry to the class of beneficiaries under the family trusts. This hasn’t yet been ruled upon.  

The initial hearing dealt solely with a procedural "blessing" application. The trustees asked the court to determine whether the existing beneficiaries (including Henry’s older brother, and any future children or issue) ought to be formally represented in the proceedings.

Given the size of the beneficiary class, many individuals could be potentially disadvantaged by the proposed exercise of the advancement power. As it wasn’t possible to identify an adult beneficiary who could act without a conflict of interest, the court accepted the trustees’ proposal to appoint an independent solicitor to represent the wider beneficiary group, ensuring that all interests would be properly protected before any substantive decision is taken.

This case underlines the challenging position trustees may face when exercising discretionary powers. Even a seemingly straightforward decision to include a child as a beneficiary must be weighed carefully against the trustees’ overriding obligation to treat existing beneficiaries fairly and to consider the impact on their respective interests.

Cross-jurisdictional parentage issues

Legal parentage is a fundamental relationship that impacts on a wide range of issues. The law relating to parentage of children conceived through artificial reproductive technology (ART) varies from jurisdiction to jurisdiction and there’s currently no international convention which confers recognition of parentage of children born through ART between different jurisdictions. This can mean that a person may be a legal parent in one jurisdiction but not in another. An intention to be a parent alone isn’t sufficient to confer legal status as a parent and it’s important that anyone conceiving using a donor or surrogate takes early legal advice to understand who will be a legal parent.  

In England and Wales where a child is conceived through ART as part of a surrogacy arrangement than at birth, the legal mother is the surrogate and, if she is married, her spouse or civil partner is the other legal parent. The persons who intend to parent the child (and who may be genetically related to the child, also known as intended parents) won’t have any status as parents at birth.

If the surrogate is unmarried, then is the second legal parent will depend upon where conception took place and whose sperm was used for conception. This may sharply contrast the law in the jurisdiction where the child was born. For example, in a number of US states, pre-birth orders are available to confer legal parentage on the intended parents and they will be named on the child’s US birth certificate as the parents. Such orders and birth certificates aren’t recognised in England and Wales as conferring legal parentage and it’s therefore necessary for intended parents to apply for a parental order or adoption to ensure they are recognised as legal parents and the surrogate (and her spouse/civil partner’s) status is removed.

Early advice to understand the position between the different jurisdictions involved is key. Although a parental order is usually the preferred route to recognition of legal parentage following a surrogacy arrangement, there may be reasons why this isn’t possible (for example, if the intended parents don’t meet the criteria for an order to be made) or why other routes, such as adoption, may be preferred. In some circumstances it may be necessary for there to be multiple orders in different jurisdictions to secure recognition of parentage.

Finally, although the Marquess and his wife are no strangers to the public eye and have previously spoken publicly about their decision to conceive Henry through surrogacy, the case further highlights the publicity such cases can attract, which not all families will welcome.  

Practical considerations

As surrogacy arrangements become more common, the world of family law and private client law must come together to accommodate today’s diverse family structures.  

As family structures continue to develop, trust and estate planning must adapt to keep pace. At Mills & Reeve, we can help with:

• Reviewing, and if applicable, updating trust documentation to ensure it reflects current family arrangements.
• Advising trustees on exercising their discretionary powers and the potential risks associated.
• Managing cross‑border trust and tax considerations, particularly where differing legal systems are involved.
• Providing tailored guidance to families as they navigate surrogacy, different routes to parenthood and succession planning, ensuring their arrangements remain resilient and aligned with their long‑term intentions.
• Advising individuals and trustees on whether legal parentage will be conferred through different routes to parenthood, such as surrogacy or donor conception, including cross-border arrangements and the options available to ensure recognition of legal parentage. 

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