Mr Justice MacDonald authorised payments retrospectively after assessing the child’s welfare.
The Family Court has granted a parental order to a couple whose child was born through a commercial surrogacy arrangement in China, despite the arrangement being illegal there and involving payments to the surrogate.
Mr Justice MacDonald made the order in D and C v K (Illegal Chinese Commercial Surrogacy) [2026] EWFC 279, holding that the order was in the child’s best interests. He also retrospectively authorised payments made in connection with the surrogacy.
The case concerned G, who was conceived and born in China through gestational surrogacy. D, a Chinese national and British citizen, and C, a national of Country A, are married and in an enduring same-sex relationship. D was found to be G’s biological father.
The couple had entered into an arrangement with an intermediary in China. The judgment records that the applicants paid a total of £92,930.60 to the intermediary, although the destination and purpose of the payments were not entirely transparent. Evidence suggested that the surrogate, K, received more than £200,000 Chinese yuan, although the precise amount and nature of the payments were unclear.
Expert evidence before the court established that surrogacy is illegal throughout China. Chinese law generally treats surrogacy agreements as invalid and recognises the woman who gives birth as the legal mother, although a biological father may establish legal parentage through proceedings. The intended father in this case was unable to secure a corresponding legal relationship for his husband under Chinese law.
The judge found that the applicants had failed to make sufficient enquiries about the legal position before entering the arrangement. He also identified a risk that K could have been exploited, particularly given the absence of a written agreement with her, the lack of clarity surrounding her recruitment and the financial arrangements.
However, there was no evidence that the applicants had deliberately sought to evade Chinese authorities, exploited K, or engaged in child trafficking, fraud, forgery or deception. The judge accepted that they had been unaware of the Chinese prohibition and had relied on people facilitating the arrangement.
Under section 54 of the Human Fertilisation and Embryology Act 2008, the child’s welfare throughout their life is the court’s paramount consideration in determining a parental order. The court must also consider whether payments made in connection with the arrangement should be authorised.
Mr Justice MacDonald held that the illegality of the overseas arrangement did not, by itself, prevent the court from authorising payments or making a parental order. Public policy nevertheless remained relevant. On the facts of this case, he concluded that the circumstances did not amount to the clearest case of an abuse of public policy that would prevent the welfare considerations from being given effect.
The court was also satisfied that K had freely and with full understanding agreed to the parental order. Her consent was witnessed remotely by the Cafcass Parental Order Reporter through WeChat after the court directed that an alternative method of witnessing could be used. The judge stressed that, without satisfactory evidence of the surrogate’s informed consent, the application would have failed.
In assessing G’s welfare, the court considered his existing attachment to D and C, his physical, emotional and educational needs, and the stability of the family home. The judge concluded that granting the order would give both applicants the legal status needed to make decisions for G and support his development throughout childhood.
The judgment also reiterates guidance for intended parents considering international surrogacy. Mr Justice MacDonald said specialist legal advice should be obtained before entering a foreign surrogacy arrangement, with early consideration of relevant government departments and detailed enquiries into the legal framework, parental status, the surrogate’s position, immigration requirements and the child’s future care.
The judge made clear that the decision was not a licence to engage in unlawful commercial surrogacy abroad and warned that a parental order will not necessarily be made in every future case.