Couple granted parentage after deal to pick their child's sex

A judge has awarded a gay couple legal parentage of a baby born through a Chinese surrogacy arrangement, where they could choose to prioritise male embryos and receive a refund if the baby was a girl.

The couple, who married in London in 2023, pursued surrogacy in China despite the practice being illegal there. They were matched with a woman in a small rural village and entered into a surrogacy agreement with her, although no papers were signed.

The agreement stipulated the use of pre-implantation genetic testing to determine the sex of the embryo as part of the IVF procedure. They intended for one baby to be born, and for that baby to be male, with the agreement specifying that they would “prioritise the transplant of ‘male’ embryos first”. The agreement also “provided for a partial refund if a male child was not born”.

The couple filed an application for a parental order in July last year, and this was granted a month later. The couple claim that they were “entirely unaware” that surrogacy is illegal in China when they entered into the agreement.

Mr Justice McDonald, the judge who granted the parental order said that the decision was in the child’s “best interests” but it should not be seen as “a licence to engage in unlawful commercial surrogacy arrangements abroad”.

Helen Gibson, founder of Surrogacy Concern, said she was “appalled” to see the parental order granted, and is calling for foreign surrogacy to be banned in Britain. “The men pursued commercial surrogacy and sex selection of embryos despite both being illegal here, and pursued surrogacy in China where the practice is banned, paying over £90,000 and having minimal contact with the surrogate mother,” she said.