The short answer is no, and Mr Justice MacDonald sitting in the High Court recently had an opportunity to spell out the problems with proceeding with a surrogacy arrangement in China in the case of D and C and K [2026] EWFC 279 https://www.bailii.org/ew/cases/EWFC/HCJ/2026/279.html The fact that this arrangement had been made in a country where surrogacy is illegal meant that the Court had to think very carefully about approving the application for a parental order on public policy grounds.
Factual background
D and C are a married gay male couple who applied on 24/07/2025 for a parental order for G, born in China via surrogacy with gestational surrogate K. G was conceived using D's sperm and an anonymous Chinese egg donor, with embryo transfer to K in June 2024. D is a Chinese national and British citizen, long resident in England, currently temporarily posted in Country B, with strong continuing UK ties. His husband C is a national of Country A, residing in Country B on an employment pass, intending to apply for a UK spousal visa upon return. As such, they were both able to satisfy the Court that they were domiciled in England and Wales to enable an application for a parental order to be made in this jurisdiction.
Surrogacy Arrangement in China
The arrangement was brokered by an intermediary 'F' through an agency referred to as "X," with limited transparency and no direct pre-birth contact with the surrogate K, who reported that there was no written contract with her; terms were agreed verbally, and she did not receive legal advice.The contract with F totalled RMB 750,000 and included sex selection preferences and "gender confirmation" refund provisions. The contract provided that handover required final payment and imposed daily fees for delayed handover post-discharge. G's birth was registered in D and K's names; the applicants assumed care the day after birth. Having considered the terms of the arrangement, the Court was in no doubt that this was a 'commercial' surrogacy arrangement (see below).
Payments
Total payments to the intermediary F were £92,930.60, with what the Court referred to as 'opaque allocation'; evidence suggests K received a one-off payment slightly over ¥200,000. D variously reported K's receipt as ¥237,007 (about £25,935) or ¥230,000 (about £25,024), conflicting with an earlier £32,000 figure.The contract did not expressly provide for payments to K, and agency costs purportedly covered her expenses.
Chinese Law Expert Evidence
Surrogacy is illegal across China under the Measures for the Administration of Human Assisted Reproductive Technologies. Chinese courts deem surrogacy agreements invalid for breaching mandatory prohibitions and public order and good morals. The birth mother is recognised as legal mother; an intended biological father may establish paternity via a confirmation suit. There is no path for a non-biological intended father to establish legal parentage, and same-sex marriage is not recognised.
Consent
The court directed the Cafcass Parental Order Reporter to witness K sign Form A101A via WeChat with an interpreter on 18/03/2026. K confirmed she did not want parental rights and understood she was surrendering them; she had no concerns to raise. The judge held the s.54(6) consent requirement was met, noting the court would have no power to dispense with consent absent this evidence.
Public Policy and Payments Authorisation
The judge recognised clear evidence of a commercial surrogacy arrangement, illegal in China and contrary to UK policy under the Surrogacy Arrangements Act 1985. Despite opacity and contract terms conditioning handover on payment, the court retrospectively authorised payments under s.54(8). Applying Re L and related authorities, welfare being paramount meant refusal would arise only in the clearest abuse of public policy, which was not found.
Welfare and Best Interests
G has lived with D and C since discharge, has formed attachments, and is cared for in a secure and stable home with plans to return to the UK. The Parental Order Reporter recommended the order to secure permanence, stability, and parental responsibility throughout G's childhood. The court found making the order plainly in G's best interests throughout his life, with no evidence of harm and D being G's biological father.
Judicial Critique and Guidance
The judge strongly deprecated the applicants' lack of due diligence and the risks of exploitation of the surrogate inherent in the illegal arrangement. The judgment reiterates guidance for intended parents on early specialist advice, engaging UK authorities, and scrutinising foreign legal frameworks. The court stressed this decision is not a licence for unlawful commercial surrogacy and that future cases will be carefully scrutinised.
