Surrogacy: no consent, no parental order

A parental order transfers complete parental rights to families who have chosen surrogacy as a pathway to parenthood.

The rights of the birth parents are terminated and transferred in their entirety to the intended parents, a term used to describe the family whose baby has been born by surrogacy.

Before a parental order is in place, under English law the woman who gave birth is the legal mother, whether or not she has a genetic link to the child and whether the birth took place in this country or abroad. This is the case where either the child is conceived with the sperm of the intended father or that of a donor, and the egg of the intended mother or donor eggs. The surrogate will maintain this status as the legal mother until a parental order made in the English courts changes this.

Frequently, the intended parents have embryos that can be used, so the child has a genetic link with both of them and none with the surrogate.

Surprisingly, if the surrogate is married or in a civil partnership, her spouse/civil partner will be the child’s other legal parent, unless it can be shown that they did not consent to the surrogacy.

To obtain a parental order, the judge must be satisfied that a number of conditions, set out in the governing statute, the Human Fertilisation and Embryology Act 2008, are fulfilled.

The cornerstone condition is that the surrogate and, if appropriate, her spouse or civil partner, must consent to the grant of a parental order. The consent must be unconditional, freely given and with full understanding. Any such consent is not valid unless given when the child is at least six weeks old.

The court has the power to dispense with consent, but only on the limited grounds that the surrogate and her spouse or civil partner, if appropriate, cannot be found or are incapable of giving consent.

In the recent Court of Appeal decision of Re C (Surrogacy: Consent) [2023] EWCA Civ 16, a husband and wife entered into a surrogacy arrangement with a woman they had met through a family contact.

An agreement was drawn up and it was understood by all that the law in this country is that surrogacy agreements are not enforceable by any of the parties to them.

During the pregnancy, the relationship between the surrogate and the intended parents deteriorated. The surrogate said she had become increasingly emotionally attached to the unborn baby and that she felt undervalued by the intended parents. However, at birth she did hand the baby over to the intended parents. When she received the parental order application, she responded that she would not consent to the grant of a parental order to the intended parents.

The surrogate’s position was that she would agree to a parental order, but on condition that a child arrangement order was made providing her with regular contact and a prohibited steps order, preventing the intended parents from moving without her written agreement.

The judge granted a parental order together with a child arrangement order containing a ‘lives with’ order in favour of the intended parents and a contact order for the surrogate.

The surrogate appealed to the Court of Appeal. The court found that the surrogate’s consent was conditional. She had been unrepresented at the first instance hearings which had been virtual. The surrogate said that she had felt pressured by the judge during the hearing to consent to the parental order.

The court accepted that the surrogate’s consent was not free and unconditional and remarked that the surrogate had only given her consent orally during the first instance hearing. Standard practice for consent in domestic surrogacy cases is that a Children and Family Court Advisory and Support Service (Cafcass)-appointed parental order reporter will witness, in person, the written consent of the surrogate on a dedicated court consent form. This had not happened in this case, and the first instance judge had not adjourned the hearing for the surrogate to reflect and seek legal advice.

Dispensation with the surrogate’s consent was not possible as the grounds for doing so were so limited and did not include an overarching child welfare ground, as is the case in adoption law.

In the case of some of the other conditions required by the Human Fertilisation and Embryo Authority, before a parental order can be made, the court has been prepared to adopt a ‘purposive approach’, arguing that it could not have been the intention of parliament for there to be rigid compliance with the wording of the statute to the detriment of the child.

An example of this is the condition that a parental order application must be issued before the child is six months old.

The courts have ruled that this six-month requirement can be extended, but is case-specific and dependent on the facts of individual cases. However, the requirement that a surrogate must consent to a parental order is so fundamental that it is very unlikely that the court would ‘write this down’.

Law Commission review

The Law Commission’s much anticipated review of surrogacy law has just been published (Building Families Through Surrogacy: A New Law 2023). Recognising that the framework for surrogacy law, now nearly 40-years old, is no longer ‘fit for purpose’ and has not kept pace with societal changes, the commission proposes root-and-branch reform.

Subject to rigorous pre-conception screening and safeguarding, there will be a new pathway for domestic surrogacy arrangements. Intended parents will become the legal parents of the child from birth, subject to a short period for the surrogate to withdraw her consent, and there will be no need for the intended parents to apply for a parental order.

However the law change would not alter the outcome of a case such as Re C, which would still need to go through the court process of an application for a parental order.

The new pathway requires that, for it to be available for a domestic surrogacy arrangement, the surrogacy must be overseen and supported by a non-profit regulated surrogacy organisation. This new regulatory framework will incorporate screening and safeguards, medical and criminal records checks, and a requirement that the parties to the proposed surrogacy arrangement receive independent legal advice and counselling.

In Re C the surrogacy arrangement was a private arrangement with no involvement of a clinic or not-for-profit surrogacy organisation. Also, the surrogate was not giving an unconditional consent to the surrogacy. For both these reasons the intended parents would have no alternative but to apply to the courts for a parental order as the new pathway would not be available to them.

However, there is one proposed law change that would assist in a case such as Re C. The commission proposes that the grounds for dispensing with parental consent should be extended to enable dispensation when the welfare of the child requires it. In this case, the intended parents have parented the child since birth. She is flourishing and firmly attached to them as the only family she has ever known. Barring any unforeseen problems, one would expect the court to dispense with the surrogate’s consent as being clearly in the child’s best interests. This law change would also bring surrogacy law into line with adoption.

But for now, the intended parents in Re C will have to rely on their child arrangements or a special guardianship order, although neither order is lifelong and the intended parents will continue to share parental responsibility with the surrogate.

They could apply for an adoption order, bringing with it its own legal challenges, or wait for the commission’s proposals for change to be taken up by the government with new legislation put in place; unlikely to be a speedy process. In the meantime, a child such as the one in Re C will continue to grow up in a legal limbo.

 

Naomi Angell is a consultant at Osbornes Law and heads its adoption, surrogacy and fertility law unit. She is also a member of the Law Society’s children’s law subcommittee