Surrogacy: the strict approach to consent

When a child is born following a surrogacy arrangement, under English law, the surrogate will always be considered the child’s legal mother, regardless of whether there is a genetic link between her and the baby.

If the surrogate is married or in a civil partnership at the time of conception, their spouse or civil partner will be the child’s second legal parent (unless they did not consent to the fertility treatment). If the surrogate is not married or in a civil partnership, the intended father may be the child’s legal father if they are genetically linked to the child. 

To extinguish the surrogate’s legal parentage (and their spouse’s or civil partner’s) and be recognised as the child’s legal parents under English law, the intended parents must apply to court for a parental order.

When deciding whether to make a parental order, the court will assess whether the criteria in s54/s54A Human Fertilisation and Embryology Act 2008 are met and whether it is in the child’s best interests for a parental order to be made. One of the criteria requires the court to be satisfied that the surrogate (and her spouse or civil partner) have freely, and with full understanding of what is involved, agreed unconditionally to the making of the parental order. The surrogate’s consent cannot be given until after six weeks following the child’s birth.

Over time, and owing to specific circumstances in some cases, the court has adopted a flexible approach towards some of the criteria, which has always been considered to be in the child’s best interests. However, the requirement that the surrogate consent to the making of the parental order remains strict and there has been no flexibility when considering this.  

Consent in practice

A surrogate’s consent is given by them signing the agreement to the making of a parental order on form A101a.

It is not common for a surrogate to object to the making of a parental order. This is because, when surrogacy arrangements are entered into properly, it usually involves thorough screening, counselling and advice so that everyone knows what is involved in the process before and after conception. In those rare cases when a surrogate has not provided consent to the making of the parental order, the order cannot be made.

In the case of Re A and B (Surrogacy: Consent) [2016] EWHC 2643 (Fam), the relationship between the intended parents and surrogate broke down during the pregnancy. Although the children were living with the intended parents after birth, the surrogate did not consent to the parental orders. Without her consent, there could not be a parental order and so the children were left in legal limbo as the surrogate and her partner remained the children's legal parents, even though they were not biologically related to the children and had expressly confirmed that they did not intend to play any part in the children’s lives. The application for a parental order was adjourned in that case, in the hope the surrogate would change her mind.

The issue of consent was again considered by the court in the very recent case of Re C (Surrogacy: Consent) [2023] EWCA Civ 16. The relationship between the surrogate and the intended parents broke down during the pregnancy and, although the child was handed to the intended parents within hours of birth, the surrogate confirmed that she did not agree to a parental order being made. She reported having become attached to the child during the pregnancy and described a feeling of loss. While she did not want to be a mother figure in the child’s life, she did want to have some involvement.

During the parental order proceedings, the surrogate (who was unrepresented) agreed to provide consent but said this was conditional upon a child arrangements order being made in her favour so she could spend time with the child. The court granted the parental order and child arrangements order but contact between the surrogate and child subsequently ceased.

The intended parents applied to vary the child arrangements order and the surrogate sought permission to appeal the parental order out of time, which was granted. The Court of Appeal found that the surrogate had neither given free nor unconditional consent. It was given in reliance on the promise of a child arrangements order and under “unwitting but palpable pressure”. The Court of Appeal allowed the surrogate’s appeal and dismissed the parental order.  The court clarified that the child was to remain living with the intended parents and have contact with the surrogate.  

This recent case has emphasised that, unlike the other s54/s54A criteria, the requirement for the surrogate to consent to the making of the parental order remains strict. 

The need for reform

If a surrogate does not consent to a parental order being made, legal parentage cannot be transferred from the surrogate to the intended parents. Instead, they will likely need to apply for a child arrangements order which would give the parents parental responsibility, but this would be shared with the surrogate (and her spouse or civil partner) who would still remain the legal mother.

Surrogacy laws in England are outdated and we await the publication of the Law Commission’s final report in respect of the intended surrogacy reforms and the draft Bill which, although initially expected in Spring 2023, is now thought to be delayed again. A number of those consulted as part of the reforms expressed views that, given the reasons that and the ways in which surrogacy arrangements are entered into, a parental order process following birth was an unnecessary hurdle. Reports from surrogates, intended parents and advisors were that surrogates do not want to have automatic legal parentage or parental responsibility for the child once they are born and are alarmed that such an involved process is required to rectify this.

Although the recommendations have not been finalised, it is understood that there is going to be a new surrogacy pathway which proposes (amongst other things) to front-load domestic surrogacy arrangements and to dispense with the need for the surrogate’s consent in the way it is required now. This means, if a surrogacy arrangement takes place in the UK and the pathway is followed, the intended parents will automatically be the child’s legal parents from birth, subject to the surrogate’s right to object within a defined period of time.

The reforms are very much anticipated and we look forward to hearing exactly what the proposed changes are going to be.

FURTHER INFORMATION

If you have any questions about the topic of this blog,  please contact Lydia Holland, Connie Atkinson or a member of our family team.

ABOUT THE AUTHORS

Lydia Holland is an associate in the Family and Divorce team and advises on all aspects of family law including divorce and separation, financial settlements, arrangements for children, cohabitation and nuptial agreements.

Connie Atkinson is a Partner in the family team and has experience of dealing with all aspects of private family work relating to both finances and children. Connie has expertise in cases involving: financial settlements; partnership, company and/or trust assets; international elements such as relocation and cross-border disputes; international surrogacy; arrangements for children; pre and post-nuptial agreements. Connie is a qualified mediator and assists as a mediator for clients in respect of all practical and legal issues surrounding family arrangements and divorce.