Britain should lift the ban on payments to surrogate mothers, the former head of the family court has told The Mail on Sunday.

In a wide-ranging interview, Sir James Munby also defended the right of women in their 50s and 60s to have children because ‘today’s 60 is like yesterday’s 40’. And reflecting on dramatic changes in society, he spoke of how those who have ‘gone down the surrogacy or same-sex marriage route’ are no longer treated as ‘people with horns’.

Sir James, the most senior family court judge in England and Wales before his retirement in July, said serious consideration should be given to abolishing restrictions on commercial surrogacy.

Sir James Munby also defended the right of women in their 50s and 60s to have children because ‘today’s 60 is like yesterday’s 40’

Women are banned from advertising themselves as surrogates or receiving payment other than to cover ‘reasonable expenses’, but Sir James argued that in reality a market already exists in the UK as payments are frequently ‘dressed up as expenses’.

He added: ‘How is a judge supposed to assess whether the £10,000 paid, for example, is a genuine expense. By and large even in the cases the court says it’s not a proper expense, the judge waves it through because otherwise what do you do?

‘It’s probably better to face up to reality and move to a proper system of regulation rather than prohibition.’

During 20 years at the High Court, Sir James, 70, said he had witnessed ‘an incredible change’ in family life.

Citing a landmark case involving a transgender man, born female, who wanted to become the first woman in history to be legally registered as the father, rather than the mother, on their baby’s birth certificate, Sir James said: ‘If someone would have said ten years ago that, in a decade’s time, there’s going to be a case in the family division on whether you can have a father without having a mother, people would have thought you were bonkers.

‘Every concept of what a family is, every concept of what a parent-child relationship is, is very much back in the melting pot.

‘Society is moving on and the challenge for lawmakers is what steps, if any, we take to accommodate those changes into our legal framework.’ He added: ‘Many people have experience of people who have gone down the IVF route, surrogacy route or same-sex marriage route and they’ve realised that these are not people with horns. They are very nice people – they just happen to have a different lifestyle.’

Sir James was the most senior family court judge in England and Wales before his retirement in July

Sir James also spoke about the controversial rise in older women having babies. The Mail on Sunday revealed earlier this year that in England and Wales the number of babies born to women over 50 had risen by more than 300 per cent compared to 15 years ago.

Under NHS rules, women over the age of 42 cannot receive free fertility treatment due to the low chance of success, although IVF clinics are free to set their own criteria.

Some critics have argued that having a baby at such an advanced age is ‘selfish’ because they will not be around to see their child grow up, but Sir James argued the growth in life expectancy means many over-60s will see their children into adulthood.

‘Modern 60-year-old grannies don’t look like grannies did 50 years ago,’ said Sir James, ahead of a speech at the Progress Educational Trust annual conference this week.

‘There is the question of whether it is right and fair to be mothering a child if you’re unlikely to live until it’s an adult,’ he said.

‘But the expectation of life for women is 85 give or take. Well if it’s 85 you will comfortably live to see your child become an adult if you have an artificial baby at 60. Today’s 60 is like yesterday’s 40.’