Modern times and terms: surrogacy and trusts following Cator v Thynn

Hannah Owen, Charles Russell Speechlys LLP

The decisions in Cator v Thynn [2026] EWHC 209 (Ch) and [2026] EWHC 1045 (Ch) have sparked the interest of family and trusts practitioners alike, sitting at the intersection of trust law and surrogacy. The case concerned how a child born via surrogacy might benefit from historic family trusts that retained pre-1970 common law meanings of “child” and “issue”. HHJ Paul Matthews approved the trustees’ proposed exercise of a power of advancement in favour of the life tenant (the surrogate child’s father), holding that this conferred both material and moral benefit upon the life tenant. The judgment did not determine the common law status of a surrogacy-born child, a point noted as undecided in English law. The authors highlight the wider significance of the decisions for trust practitioners, emphasising that settlors should incorporate flexible definitions of “child” in new trusts and that trustees of older settlements should proactively seek advice where beneficiaries are born through surrogacy or other assisted reproduction. The case also raises important considerations regarding international surrogacy arrangements, including potential tax consequences.