Judge criticises intended parents' lack of 'due diligence' in surrogacy case

A UK judge has granted a parental order after illegal commercial surrogacy in China, despite 'strongly deprecating' the intended parents' choices.

Mr Justice Alistair MacDonald made the order at the Family Court in London in relation to a boy born last year in China, where surrogacy is illegal. The intended parents, who claimed to be unaware of the Chinese ban, paid about £93,000 to an intermediary who arranged a donor egg and a Chinese surrogate.

Justice MacDonald said the case was 'another example of intended parents failing to undertake sufficient due diligence with respect to the arrangements they entered into by way of an international surrogacy agreement'.

The intended parents are the boy's genetic father, a British citizen born in China named only as D, and his husband, referred to as C. Continuing the child's relationship with D and C – with whom he has lived since birth – was in the child's best interests, said Justice MacDonald. As such, the judge granted the parental order, despite 'strongly deprecating the course taken by D and C'.

The surrogate had no legal advice or surrogacy agreement but signed a consent form on camera, witnessed by a court-appointed reporter. Justice MacDonald said he was therefore satisfied, on balance, that the surrogate gave valid consent.

The destination of payments to the surrogate was unclear. Justice MacDonald 'reluctantly' authorised the payments retrospectively, finding that the child's welfare outweighed public policy concerns, a point made by another High Court judge in June 2026 (see BioNews 1343). Justice MacDonald found no evidence that the men sought to exploit the surrogate, but said that he saw a risk of exploitation.

PET trustee Natalie Sutherland – a partner at International Family Law Group in London, which represented D and C – wrote in Today's Family Lawyer that anyone 'considering any surrogacy arrangement outside this jurisdiction' should seek legal advice both in the UK and in the destination country, prior to embryo transfer. She noted that D and C sought English legal advice only after the child's birth, and that 'the surrogate should also receive her own independent legal advice'.

The contract between the couple and the intermediary also specified embryo screening and a preference for male embryos, with a fee reduction of about £22,000 if a boy was not born. Under UK law, clinics cannot select embryos by sex, except to avoid a serious sex-linked medical condition. However, it is not illegal for people in the UK to seek sex selection overseas.

In concluding his judgment, Justice MacDonald said his decision should not be seen as 'a licence to engage in unlawful commercial surrogacy arrangements abroad', and urged intended parents to seek specialist legal advice prior to overseas surrogacy.

'Would-be parents who are contemplating entering into a commercial foreign surrogacy arrangement should be in no doubt that court will not make a parental order simply because the court is presented with an apparent fait accompli based on the fact that the subject child is already in the care of the intended parents,' he said.