D and C v K (Illegal Chinese Commercial Surrogacy) [2026] EWFC 279 is a significant recent decision concerning the grant of parental orders following an overseas unlawful commercial surrogacy arrangement. The case required the Family Court to reconcile the statutory requirements governing parental orders with the welfare of a child who had already been born and was living with his intended parents.
The judgment highlights the tension between two important objectives: protecting children and surrogates from potentially exploitative surrogacy practices and ensuring that a child’s legal status reflects the reality of an established family relationship.
Mr Justice MacDonald granted the parental order, notwithstanding serious concerns about the legality and circumstances of the arrangement. However, the judgment should not be understood as judicial approval of commercial surrogacy conducted unlawfully abroad. Rather, it illustrates the court’s careful balancing of public policy, statutory safeguards, consent, and the child’s lifelong welfare.
Facts of the case
The applicants, D and C, were a married same-sex male couple who sought a parental order in respect of their son, G (20 months), born in 2025 following a commercial surrogacy arrangement in China. D was G’s biological father, and an egg donor had provided the egg used to create the embryo. The arrangement was facilitated by an intermediary who the applicants entered a surrogacy contract with. The applicants paid approximately £92,930.60, but the precise destination, purpose and allocation of the money were not entirely clear. There was no formal surrogacy agreement with the surrogate, and she did not receive legal advice. The arrangement was particularly troubling because commercial surrogacy was prohibited in China, and the applicants had not adequately investigated the legal position before proceeding.
Several features of the arrangement were significant:
Sex selection: The contract prioritised the transfer of male embryos and provided for a partial refund if a male child was not born.
Conditional handover: The final payment had to be made before or during the handover of the baby.
Financial penalties: The contract imposed a daily charge if the intended parents delayed collecting the child following discharge from hospital.
Lack of safeguards for the surrogate: K had no written surrogacy agreement with the applicants and received no independent legal advice. The applicants had limited direct contact with her, having been discouraged from communicating with her by the intermediary.
Uncertainty surrounding payments: Although substantial sums had been paid, the evidence concerning the amount received by K and the basis on which she was paid was inconsistent.
G was placed in the applicants’ care shortly after birth. The applicants subsequently sought a parental order in England and Wales, which would establish their legal parenthood and bring the existing legal parent-child relationship into line with G’s family life. The application was made within the statutory six-month period.
Legal issues
The principal issues concerned the court’s power to make a parental order where the surrogacy arrangement was both commercial and unlawful in the country in which it took place.
The statutory framework: section54 of the Human Fertilisation and Embryology Act 2008
Section 54 of the Human Fertilisation and Embryology Act 2008 provides the statutory basis for parental orders in England and Wales. In accordance with section 54 of the Human Fertilisation and Embryology Act 2008, when considering whether to make a parental order, the court will need to satisfy itself that the intended parents meet certain criteria:
Conception must have taken place by artificial insemination or embryo transfer, and the child must have been carried by a surrogate.
The intended parent, or if the application is made by a couple, at least one of them must have a genetic link with the child. It follows that in cases of double gamete donation parental orders are not available.
Single parents can now apply for a parental order but if the intended parents are applying as a couple, they must be married, in a civil partnership or living together in what is deemed as an “enduring family relationship”.
As set out above, the application needs to be made between six weeks and six months of the birth.
The child must be living with the intended parents.
As at the date when the application and any order is made, the intended parent must be domiciled in the UK, Channel Islands, or Isle of Man. If there are two intended parents applying as a couple then at least one of them must be domiciled in the UK, Channel Islands, or Isle of Man.
The intended parents must be over the age of 18.
The surrogate and any spouse/civil partner must freely consent to the order.
The intended parents must not have paid the surrogate more than her reasonable expenses.
Two aspects of the legislation were particularly important in this case:
Consent: The surrogate’s consent must satisfy the statutory requirements, including being free and informed and not given within the prohibited period following birth. The court must be satisfied that the necessary consent has been obtained.
Payments: Payments beyond reasonable expenses require the court’s authorisation. The court must consider whether to authorise payments retrospectively where the arrangement involved commercial remuneration.
The central difficulty was that the arrangement could not simply be treated as an ordinary overseas surrogacy. Its terms and circumstances raised concerns about exploitation, the surrogate’s autonomy and the commercialisation of both pregnancy and the transfer of the child.
The surrogate’s consent
A crucial issue was whether the surrogate’s consent complied with the statutory requirements. The surrogate had not signed a conventional written surrogacy agreement with the applicants, had not received independent legal advice and had limited contact with them. She was also unable to attend a notary to witness her signature because the arrangement was illegal in China. Nevertheless, she communicated with the Cafcass Parental Order Reporter through WeChat, with the assistance of a Mandarin interpreter, and confirmed that she did not wish to exercise parental rights in respect of G.
There was also a procedural difficulty concerning the formal witnessing of her consent. The court addressed this by directing the Cafcass Parental Order Reporter to witness the surrogate signing the relevant form by video link.
The case demonstrates that the court must scrutinise consent rather than assume that an intended parent’s account, or the existence of an intermediary’s contract, is sufficient. The surrogate’s understanding, freedom of choice and ability to give the required consent are essential considerations.
Retrospective authorisation of commercial payments
The most difficult public policy issue concerned the substantial payments made under the arrangement. The court was faced with an arrangement that was unlawful in China and included contractual provisions that were deeply troubling and risked treating the child as the subject of a commercial transaction. However, the court had to distinguish between condemning the circumstances of the arrangement and deciding whether refusing a parental order would serve the child’s interests. The court is not required to consider how the surrogacy arrangement abroad was made and implemented. The test is whether the authorisation of the payment is in the child's best interests and therefore permits the court to make a Parental Order. The child's welfare is the court's paramount consideration. However, the legality of the arrangement must be considered on public policy grounds.
Applying the established approach to retrospective authorisation of payments, the court considered whether the case amounted to the clearest form of abuse of public policy that would justify refusing authorisation. The court concluded that, despite the seriousness of the concerns, the case did not cross that threshold. For more information about permitted payments and reasonable expenses see our previous article.
The court found no evidence of deliberate evasion, trafficking, fraud, or deception which was relevant to its conclusion. It did not make the arrangement lawful or remove the risk of exploitation; rather, it informed the court’s assessment of the appropriate legal response.
Decision
Although Mr Justice MacDonald strongly discouraged the approach taken by the applicant’s he granted the parental order as he held it was in G’s best interests. By the time of the proceedings, G had lived with the applicants since shortly after birth and had developed a close attachment to them. They provided a stable family home, and there was no dispute about his day-to-day care.
A parental order would provide G with greater legal certainty, permanence, and security. It would also secure the legal position of both applicants, rather than leave their family relationship exposed to the uncertainties arising from the overseas arrangement. However, MacDonald J rejected the intended parents could proceed with unlawful arrangements in the expectation that the Court will regularise the child’s state because they have settled in the applicant’s care and formed attachments to them. The fact that a child is already in the care of the intended parents does not automatically entitle them to a parental order. The court’s task remains to apply the statutory framework and consider the circumstances of the individual case.
The judgment’s warning to prospective intended parents is therefore central: a court will not grant a parental order simply because it is presented with an apparent fait accompli.
The court’s decision should also not be interpreted as establishing that welfare automatically overrides public policy in every surrogacy case. The nature of the wrongdoing, the evidence of exploitation or deception, the statutory requirements and the child’s circumstances remain important.
It highlights the need for intended parents to examine the conditions in which surrogacy takes place and offers a clear practical lesson for prospective intended parents: legal advice should be obtained before entering an international surrogacy arrangement, not only after the child is born.
That advice should address:
The legality and regulation of surrogacy in the relevant jurisdiction.
The legal status of the surrogate and the intended parents under local law.
The requirements for obtaining a parental order in England and Wales.
The surrogate’s independent advice and informed consent.
The nature, destination, and legal treatment of payments.
The implications for the child’s nationality, immigration status, parentage, and long-term security.
Failure to address these matters at the outset may create serious legal difficulties for the intended parents, the surrogate and, most importantly, the child. Early legal advice before starting to embark on a surrogacy journey will avoid potential lengthy, costly litigation and uncertainty. For more information see our previous article.
For more information, please contact our expert International Family & Divorce Lawyers.
Read More
