D & Anor v K (Illegal Chinese Commercial Surrogacy) [2026] EWFC 279 concerned an application by a married same-sex male couple, D and C, for a parental order for their son, G, born via a commercial surrogacy arrangement in China. Mr Justice MacDonald required to consider a surrogacy arrangement which, due to its commercial nature, was not only prohibited domestically, but unlawful in its country of origin. The judgment is an instructive guide for couples considering surrogacy abroad.
BACKGROUND
D and C arranged the surrogacy through an intermediary, F, notwithstanding that commercial surrogacy is prohibited in China. Their contract fixed a price, specified IVF sex selection prioritising male embryos, provided a partial refund if a girl was born instead, imposed a daily penalty for delay in collecting the child, and made final payment a precondition of handover.
The surrogate, K, signed no written agreement, received no independent legal advice, and had very limited contact with the applicants, on F's advice. Payments of almost £93,000 passed to F. What reached K, and on what basis, remained inconsistent across the applicants’ own accounts. G was born in 2025 and is D's biological son. The applicants took custody immediately and applied for a parental order at the Family Court sitting at the Royal Courts of Justice within the statutory six-month window.
THE LEGAL FRAMEWORK
Section 54 of the Human Fertilisation and Embryology Act 2008 requires, among other conditions, that at least one of the applicants be domiciled in the UK, that the surrogate has freely and knowingly consented unconditionally, and that no payment beyond reasonable expenses has been made unless the court authorises it. Once the court has been satisfied that the conditions have been met for a parental order, the welfare provisions of the Adoption and Children Act 2002 require to court to consider child's lifelong welfare.
THE COURT'S DECISION
The main issue in this case was consent. The prescribed written form had not been properly witnessed, and the court gave short shrift to the applicants' privacy explanation, treating it as a difficulty of their own making. The application was rescued only by the court permitting an alternative method of witnessing, directing the Cafcass Parental Order Reporter watch K sign by video link with an interpreter. Absent that, failure to establish free and informed consent would have been fatal.
On the matter of payments, the court confronted the applicants’ own repeated description of the arrangement as commercial, under a contract conditioning handover on full payment, on its face offending section 54(8)(c). Applying Hedley J in Re L (a minor), the court held that welfare's paramountcy weights the balance firmly towards authorising such payments, refusing only in the clearest case of abuse of public policy. The absence of evidence of deliberate evasion, trafficking, fraud or deception allowed the court to conclude that this case was not one that should be refused on public policy grounds, notwithstanding the court's own description of a serious and appreciable risk of exploitation in how the arrangement had been conducted.
Having cleared those hurdles, the court held that welfare was established. G was settled and bonded with both applicants, with everything to gain from legal security and nothing from delay.
ISSUES IDENTIFIED BY THE COURT
The judgment is notable for the directness with which the court named the features that troubled it, even whilst making the order. It identified sex selection, a sex-contingent refund, a delay penalty and payment-conditional handover as terms treating the surrogate and the child as subjects of contractual performance. The court invoked Lord Mansfield's maxim that no court will aid a cause founded on an illegal act, acknowledging that authorising the payments meant sanctioning sums paid under an agreement that would itself be a criminal offence if negotiated commercially here.
The court was equally direct that the outcome is not approval of the process. It stated that the decision is not a licence to engage in unlawful commercial surrogacy abroad, and, echoing its own reasoning in the adoption context in D v London Borough of Bromley, that it will not simply defer to a fait accompli because a child is already settled by the time of the hearing. The welfare analysis that resolves most such cases is better understood as a function of timing than forgiveness. By the final hearing, no realistic alternative to the child remaining with his intended parents exists. However, the court cautioned that latitude of this nature might not be extended in future cases.
POINTS FOR COUPLES CONSIDERING SURROGACY ABROAD
The practical message, for future cases, is that the ability to secure a parental order depends heavily on diligence exercised before conception. The court repeated its now-familiar checklist, including the legal status of surrogacy in the relevant country, the route to legal parentage there, the surrogate's own legal position, the nature of contact between intended parents and surrogate, and the downstream immigration, nationality and succession consequences for the child.
Three points deserve emphasis. Firstly, specialist legal advice in both the intended parents' home country and the country where the surrogacy will take place should be obtained before any embryo is created, not retrospectively once a child has arrived. Secondly, independent advice and free consent of the surrogate are very important factors that should be considered at all stages of the journey. Thirdly, couples should be alert to any contractual terms going beyond reimbursement of reasonable expenses, particularly terms tying payment to the child's sex or to handover itself, since these are features which a court will scrutinise closely.
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