The centrality of consent in surrogacy cases

A recent judgment from a case heard at the Court of Appeal in England has served to underline the absolute veto that a surrogate has in relation to a parental order application.

When a child is born via a surrogacy arrangement, the surrogate is the legal mother at birth (and, in some cases, her spouse or partner is the second legal parent). For legal parenthood to be transferred from the surrogate (and her spouse/partner) to the intended parents, the intended parents require to secure a Parental Order from the courts. The surrogate requires to freely and unconditionally consent to that order being granted.

In Re C (Surrogacy: Consent) [2023] EWCA Civ 16, the Court of Appeal issued invaluable guidance on the consent requirements. In this case, the surrogate and intended parents entered into a surrogacy agreement, and the surrogate became pregnant pursuant to that. The relationship between the surrogate and the intended parents began to break down during the pregnancy, and although she handed the baby over to the intended parents shortly after the birth, the surrogate did not consent to the Parental Order being granted when the intended parents applied to the court for that. She formally indicated that she wished to retain parental rights so that she was entitled contact with the child, and sought an order allowing her to see the child regularly after attending mediation, the parties returned to court and the surrogate (who was not represented by a solicitor) told the court towards the end of the hearing that she would consent to the order, on the basis that an order allowing her regular contact also be made, commenting "I don't see that there's any other way for us to move forward without it". The court made those orders. The following day, the surrogate emailed the intended parent’s solicitors stating that she had felt under pressure to consent in court, and had done so only conditionally.

After a few months, contact between the surrogate and the child was stopped by the intended parents and they sought to discharge or vary the order which had allowed her contact. The surrogate then appealed against the parental order on two grounds:

• That the court was wrong to make the order when it was clear that S’s consent was being given conditionally on the making of a child arrangement order, and therefore it was not given unconditionally as required by s.54(6) of the Human Fertilisation and Embryology Act 2008; and
• The court was wrong to make the order when the consent provided by S was not provided ‘freely’ as required by s.54(6) of the Human Fertilisation and Embryology Act 2008.

The court held that the surrogate’s consent was neither unconditional nor free. Rather, it was given only in reliance that she would in turn be granted an order allowing her regular contact with the child. The circumstances surrounding her confirming her consent verbally in court were also a factor – the court described the surrogate as being under ‘palpable pressure’. The court set out that the right of the surrogate to not consent is a ‘pillar’ of the legislation, and that if there is any doubt about the consent seemingly given it is a matter of the judge to consider in all of the circumstances of the case. Whilst it is not mandatory for the consent to be given in writing, the absence of written consent is an indication to the court that it should probe to ensure the consent has been validly given.

The court further held that the setting aside of the parental order would not infringe the intended parent’s right to family life under Article 8 of the European Convention on Human Rights such as to require the order to be left in place without valid consent.

The surrogate’s appeal was allowed, and the application for a parental order was dismissed.

This case reiterates that the surrogate’s free and unconditional consent is absolutely central to the process of obtaining a parental order, ad that legal parenthood cannot be transferred to intended parents without it.