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Surrogacy and Consent

The Court of Appeal have provided what is described as "essential guidance" on the consent requirements within the Human Fertilisation and Embryology Act 2008 (HFEA), in a Judgment handed down in case of Re.C (surrogacy: consent) [2023] EWCA Civ 16.

The Law

Surrogacy is legal in the UK, but surrogacy arrangements are not enforceable. At birth, the surrogate (and, if she is married or in a civil partnership, her consenting spouse or civil partner) will be the legal parents of the child. Following the birth of the child, a legal process takes place to transfer legal parenthood from the surrogate to the intended parents. A Parental Order is granted confirming the parentage of the child.

Parental Order applications are governed under S.54 HFEA 2008. Under S.54 the following criteria must be satisfied for an Order to be made:

1. The child must have been conceived artificially and be genetically related to one of the intended parents.
2. The intended parents must be married, in a civil partnership or living as partners.
3. The application must be made within 6 months of the child's birth.
4. The child must be living with the intended parents and at least one of them be domiciled in the UK.
5. The intended parents must be over 18.
6. The surrogate must be paid no more than reasonable expenses unless authorised by the Court.

S.54(6) considers consent and provides that the Court must be satisfied that both:

a) the woman who carried the child and;

b) any other person who is a parent of the child but is not one of the applicants

have freely, and with full understanding of what is involved, agreed unconditionally to the making of the Order.

This case relates to whether the surrogate gave her consent "freely" and "unconditionally" to the granting of a Parental Order.

Case Background

The parties having met in 2018, signed a surrogacy agreement in 2019. In November of that year artificial insemination took place using the egg of the surrogate and sperm of one of the intended parents. The surrogate became pregnant.

By spring 2020, the parties relationship had deteriorated with the surrogate becoming increasingly attached to the baby. However, when the child was born in September 2020 the surrogate handed over the child to the intended parents as per the agreement.

The intended parents applied for a Parental Order in November 2020. In January 2021 the surrogate returned her acknowledgment of service to the Court stating she did not consent to the making of the Parental Order. This was also made clear by the surrogate to the allocated CAFCASS Parental Order reporter, who subsequently was unable to recommend a Parental Order being made.

Despite this, at a hearing on 11th August 2021 the Court made a Parental Order alongside a Child Arrangements Order.

The surrogate appealed on two grounds:

a) Her consent was not given "unconditionally" because it was upon the condition of a Child Arrangements Order being made and;

b) Her consent was not provided "freely".

Throughout the hearing on the 11th August, the surrogate had voiced that she was unable to give her consent "unconditionally" as she wanted a Child Arrangements Order to be made allowing her to spend time with the child.

Lord Justice Peter Jackson gave criticism to the fact that the Order was made with the surrogate giving her consent orally and with the hearing take place remotely. He alluded to the fact that the Court process might in itself have exerted pressure to the extent that any consent was devalued. In addition, he referenced the Judge addressing the unrepresented surrogate at some length and commented "the inevitable stress on any litigant was then inadvertently exacerbated by the way in which the Appellant found herself out on a limb, with her position on consent being represented as the only obstacle to an overall solution".

The surrogate found herself in an impossible situation, she had made it clear that by the law under S.54(6) she was unable to give her "unconditional consent" because her consent was conditional on a Child Arrangements Order being made. This wasn't about her wanting the child back in her care, she simply wanted to retain her PR in order to have some resemblance of a relationship with the child. The Judge addressed her at some length during the hearing, Lord Justice Peter Jackson had commented that perhaps an alternative would have been to set down the hearing to allow the surrogate time to reflect on her position.

Decision

The Lord Justices found the surrogates consent was "not merely reluctant but neither free nor unconditional" and was made under "palpable pressure". The Judgment concluded with the appeal being allowed.

Interestingly, Lord Justice Peter Jackson suggested that the intended parents had the availability of adoption to secure the child's legal relationships and as such found that the rights of the intended parents and the child would not be violated in setting aside the Parental Order.

There is a current review of surrogacy law being carried out by the Law Commission and as part of the consultation paper, it discusses the option of dispensing with a surrogate's consent on welfare grounds if the child is living with the intended parents. As the present law stands, consent is very much key in granting of any Parental Order and this case confirms this.

For more information contact Adrienne Baker in our Family/Divorce department via email or phone on 01254 580 000. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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