Background
D and C, a married same-sex couple, applied for a parental order concerning G, who was conceived using D’s sperm and an anonymous donor egg and carried by K in China. The applicants contracted with an intermediary for a commercial arrangement costing £92,930.60. Surrogacy is illegal in China, the agreement was void under Chinese law, and K had no written agreement or independent legal advice. The contract permitted sex selection, linked handover to final payment, and placed K at serious risk of exploitation.
G entered the applicants’ care immediately after birth and later lived with them in Country B. K told the Cafcass Parental Order Reporter that she did not seek parental rights and signed the prescribed consent form during a video call witnessed by the reporter and a Mandarin interpreter. The applicants filed their application within six months of G’s birth. D retained substantial ties to England and intended to return after his temporary overseas posting.
The court had to decide whether D was domiciled in the United Kingdom, whether K had given valid consent, whether the substantial and opaque payments should be retrospectively authorised, and whether granting an order arising from an illegal foreign surrogacy would offend public policy.
The Court’s Holding
Mr Justice MacDonald granted the parental order under section 54 of the Human Fertilisation and Embryology Act 2008. He found that D had acquired a domicile of choice in England and that K had freely, knowingly, and unconditionally consented. The court could accept the alternative method of witnessing her consent remotely; without the reporter’s verification of K’s identity, signature, understanding, and lack of wider concerns, the consent requirement could not have been dispensed with and the application would have failed.
The court reluctantly authorised the payments retrospectively. Although the arrangement was illegal in China, commercial in nature, inadequately documented, and potentially exploitative, section 54 did not itself preclude authorisation of payments connected with an unlawful foreign arrangement. The governing test was G’s lifelong welfare, while public-policy concerns still required careful scrutiny. The applicants’ conduct was serious but did not amount to the clearest abuse of public policy: there was no evidence that they deliberately evaded Chinese law, sought to exploit K, trafficked the child, or used fraud, forgery, or deception.
G’s welfare decisively supported the order. He had lived with D and C since birth, was securely attached to them, and depended on them to meet his needs. A parental order would secure both applicants’ legal status and parental responsibility without changing his settled care. The judge nevertheless stressed that the decision did not license unlawful commercial surrogacy abroad and that a completed placement will not automatically produce a parental order in future cases.
Key Takeaways
- A parental order may be granted after an illegal foreign commercial surrogacy, but only after close scrutiny of statutory requirements, lifelong welfare, and public policy.
- The surrogate’s free, informed, and unconditional consent is indispensable; unlike payment restrictions, it cannot be retrospectively waived or dispensed with.
- Intended parents should obtain specialist advice before entering a foreign arrangement and verify its legality, the surrogate’s protections and status, parentage, payments, immigration consequences, and documentary requirements.
Why It Matters
The decision explains that a foreign surrogacy’s illegality does not automatically bar a parental order or retrospective authorisation of payments. Because the child’s lifelong welfare is paramount, public policy will defeat an otherwise welfare-supported order only in the clearest case of abuse.
But the judgment is also a strong warning. Courts will not treat a child’s placement with intended parents as an automatic fait accompli, particularly where the process involves illegality, commercial pressure, opaque payments, inadequate consent safeguards, or exploitation. Future applicants may receive a different outcome on more serious facts.