The recent decision in D & Anor v K (Illegal Chinese Commercial Surrogacy) [2026] EWFC 279 serves as a significant reminder that intended parents involved in international surrogacy arrangements should not assume that the English courts will automatically grant a parental order simply because a child has already been born and is living in their care.
While the Family Court ultimately granted a parental order in this case, the judgment contains some of the strongest judicial warnings to date regarding commercial surrogacy arrangements that raise concerns about the exploitation of surrogate mothers.
The background
The case concerned a married same-sex couple who entered into a commercial surrogacy arrangement in China. The arrangement was facilitated through an intermediary and involved payments totalling approximately £93,000. The child was conceived using one applicant’s sperm and a donor egg and was carried by a surrogate mother in China.
A key complication was that surrogacy is illegal in China. (Commercial surrogacy is also illegal in England). Like England, surrogacy agreements are unenforceable under Chinese law and the woman who gives birth is ordinarily recognised as the child’s legal mother.
The court also identified several troubling features of the arrangement, including:
- The lack of transparency regarding the distribution of payments made by the couple who relied upon an intermediary rather than a clearly identified agency.
- The complete absence of independent legal advice for the surrogate.
- Limited direct contact between the intended parents and the surrogate.
- Contractual provisions linking final payment to the handover of the child.
Why the Court was concerned
Mr Justice MacDonald was clear that the arrangement gave rise to serious public policy concerns. The judgment recognised the risk that international commercial surrogacy arrangements can create circumstances in which surrogate mothers are exploited, particularly where there is a lack of informed consent, independent advice, or transparency regarding payments.
The court was particularly troubled by the fact that the intended parents had limited knowledge of how much money was ultimately received by the surrogate, and by the absence of safeguards that would ordinarily be expected in an ethical surrogacy arrangement.
Despite these concerns, the court ultimately granted a parental order.
As in previous surrogacy cases, the court gave significant weight to the lifelong welfare of the child. By the time the matter came before the court, the child was living with the intended parents. With some reluctance, the judge found that it was in the child’s best interests for the child’s legal status to be secured through a parental order.
A clear warning to intended parents
Perhaps the most important aspect of the judgment is the warning given by the Court at the conclusion of the case.
Mr Justice MacDonald emphasised that intended parents should not believe that the Court will simply endorse a surrogacy arrangement because a child has already been born and placed in their care. He warned that would-be parents entering into foreign commercial surrogacy arrangements should be under no illusion that presenting the court with a “fait accompli” will necessarily result in the making of a parental order.
This warning reflects an increasing judicial focus on the ethical dimensions of international surrogacy and the protection of surrogate mothers from exploitation.
The importance of early legal advice
This case underlines the importance of obtaining specialist legal advice before entering into any surrogacy arrangement, particularly where the arrangement involves another jurisdiction.
The legal position can vary significantly from country to country. An arrangement that appears straightforward overseas may present substantial legal difficulties when intended parents seek to establish legal parenthood in England and Wales.
Early advice can help intended parents to:
- Understand whether surrogacy is lawful in the proposed country.
- Assess the risk that a surrogate may be regarded as vulnerable or exploited.
- Ensure appropriate consent procedures are followed.
- Maintain proper records of all payments.
- Avoid arrangements involving unethical intermediaries.
- Consider immigration, nationality and citizenship issues.
- Maximise the prospects of a successful parental order application after the child’s birth.
Most importantly, obtaining advice at the outset may help families avoid costly litigation and uncertainty about their legal status later.
Need Advice on Surrogacy?
Are you considering surrogacy in the UK or overseas, involved in a surrogacy arrangement and require advice regarding parental orders, international surrogacy arrangements, or the legal issues arising after a child’s birth? Contact Saika Alam, Partner and Co-Head of our Family team at sa@branchaustinmccormick.com or 020 78510100.
Saika advises intended parents on the family law aspects of domestic and international surrogacy arrangements, including parental order applications and the legal recognition of parenthood in England and Wales. Importantly, she works closely with Branch Austin McCormick’s specialist immigration team to ensure that both the family law and immigration aspects of an international surrogacy arrangement are addressed from the outset. Early, coordinated advice can help avoid costly delays, uncertainty and unexpected complications, while ensuring the process proceeds as smoothly as possible for both parents and child, so do get in touch with Saika and the team to see how they can help.
