In D & Anor v K, the Family Court made a parental order for a child born in China through a surrogacy arrangement that is illegal there, after hearing expert evidence on Chinese law.
Key facts
- Who: The applicants D and C, and the child G, born in China in 2025 through surrogacy.
- From: 29 September 2026 (judgment date; hearing 17 June 2026)
- Source: D & Anor v K (Illegal Chinese Commercial Surrogacy) [2026] EWFC 279
In D & Anor v K (Illegal Chinese Commercial Surrogacy) [2026] EWFC 279, handed down on 29 September 2026, Mr Justice MacDonald considered an application for a parental order. The case was heard in the Family Court at the Royal Courts of Justice. The judgment is anonymised, and this report uses the initials the court used.
Background
D and C, a married same-sex couple, applied on 24 July 2025 for a parental order for G, a child born in 2025. G was conceived and born in China with the help of a gestational surrogate, K. D is a Chinese national and a British citizen. C is a national of another country. DNA evidence confirmed D as G's biological father. The embryo was created with an anonymous donor egg.
The arrangement was made through an intermediary rather than a named agency. The couple had a contract with that intermediary, but nothing signed by K and no agreement with her. K had no legal advice. The couple paid the intermediary a total of £92,930.60, and the court noted a lack of transparency about where the money went. The accounts of what K received differed. The contract allowed the couple to choose the child's sex.
The question
The court had to decide whether to make a parental order for G. The Secretary of State for Health and Social Care declined an invitation to intervene.
The decision
At the end of the hearing the judge made a parental order in favour of D and C. The written judgment sets out his reasons.
The evidence the court considered
An expert report on Chinese law, which was not disputed, said that any form of surrogacy is illegal in China and that surrogacy agreements are generally held invalid. It said the woman who gives birth is recognised as the legal mother, although there have been some limited cases in which the intended mother who provided the gamete was recognised. There is no clear path for intended parents to regularise their legal relationship with the child. A biological father may generally obtain legal parentage through a parentage confirmation lawsuit, but an intended father with no biological link, such as C, cannot.
The Cafcass Parental Order Reporter said the couple had been open and transparent with the court but had not shown the necessary diligence before the arrangement. She said K had no protection and was at risk of exploitation, and that G was vulnerable because of the way he was born. She also reported that G has formed a close bond with the couple, who have cared for him since he left hospital. In her view an order would give G permanency, stability and security, which could not be obtained in China.
What this means for intended parents
- This was a decision on the facts of one family. The court weighed the evidence about how the arrangement was made, the payments to the surrogate, her consent and G's welfare.
- Parental order applications can involve evidence of foreign law, payments and the surrogate's consent.
- Anyone considering or already involved in an overseas surrogacy arrangement should keep records of contracts, payments and communications, and take legal advice, including before the time limit for applying runs out.
Sources
- D & Anor v K (Illegal Chinese Commercial Surrogacy) [2026] EWFC 279, Family Court, 29 September 2026: https://caselaw.nationalarchives.gov.uk/ewfc/2026/279