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This article is published while the law in relation to surrogacy is under scrutiny, The Law Commission having published recommendations for reform in March 2023.
These recommendations suggest streamlining the process of obtaining legal parentage, but they still uphold the surrogate’s right to withdraw her consent.
During this time of scrutiny of the current laws, a heart-rending judgment was handed down earlier this year in an appeal concerning the question of whether a Parental Order should be made, if the birth mother’s consent is not given “free and unconditional” or where consent is refused by the birth mother.
In this case Re C (Surrogacy: Consent)  EWCA Civ 16, the intended parents (the Respondents to the Appeal) had originally tried to use a donor egg and the Second Respondent’s sperm. This had failed and they tried again, this time with the surrogate’s (The Appellant’s) egg and the Second Respondent’s sperm. This worked. However, about halfway through the pregnancy, the relationship between the parties deteriorated. The Appellant grew closer to the pregnancy and less close with the intended parents. The intended parents said that this breakdown in relationship was because the Appellant didn’t share information with them about the pregnancy. Nevertheless, the Appellant did give up the baby when it was born, some seven hours after birth. From the judgment, giving up the baby was a struggle for her. She received counselling at the expense of the Respondents.
Some two months later, on 27 November 2020, the Respondents applied for a Parental Order. On 4 January 2021, The Appellant returned the form of acknowledgment stating that she did not consent to the Parental Order being made. She wrote to the Respondents to explain her position. It appears that the parties did divert into mediation after this, and the relationship improved for a while, but by the time the Parental Order Report was filed in June 2021 the recommendation from CAFCASS was not to grant a Parental Order on the basis that “the Appellant had not consented…[wanting] to keep her parental responsibility to allow her legal rights to spend time with C”.
At the first hearing on 8 June 2021 the Respondents sought a “lives with order” giving Parental Responsibility to the First Respondent. This was supported by the Appellant but the court declined to make the order on the basis that the Appellant’s consents needed to be “clearly established”. On 22 June the Appellant filed a statement explaining her position, that she had intended to consent to a Parental Order, but that her position had changed because of:
(a) her unexpected feelings for the baby and
(b) because she had expected to be an important person in his life (which she no longer felt would happen). She would agree to a Parental Order if:
The matter came before HHJ Gordon-Saker on 11 August 2021. The Appellant appeared without representation and the hearing was via CVP. The judge made a Parental Order and a Child Arrangements Order, including a “lives with” provision in favour of the Respondents and a contact order where the child would spend one weekend day with the Appellant every six weeks and two additional weekend days each year to celebrate his birthday, and Christmas.
However, the next day the Appellant emailed the Respondents’ solicitors stating that she felt under pressure to consent and had only provided conditional consent. She did not yet seek to appeal. For the rest of 2021, contact did take place. However, in January 2022, contact did not take place (it is not clear from the judgment why).
In February, the Respondents sought to discharge or vary the child arrangements order. Shortly after, the Appellant attended for contact, but the Respondents did not permit this contact to take place.
By March 2022, the matter was heard by the District Judge on the Respondents’ application to vary, and the Appellant gave notice that she wished to appeal the Parental Order. Contact was suspended while assessments were conducted and indirect contact only was directed. In July 2022, the Judge granted permission to appeal out of time. She did not permit an appeal regarding suspension of direct contact.
This article will not deal with s.54 HFEA 2008 in detail, but it provides the need for the surrogate to “have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order”. (s.54(6) HFEA 2008). Importantly, if the consent is given less than 6 weeks after the child’s birth then it will be ineffective. Why has statute provided for a 6-week “cooling off period”? Is there any scientific basis for allowing a 6 week period specifically. Does the law take into account hormonal fluctuations after birth and is there a genuine belief that the surrogate mother will be more competent in making this decision at 6 weeks’ post-partum, as opposed to say, 3 months?
The consent of a surrogate mother has been described as a ‘unique’ concept in law (c.f. Re H (A Child)  EWCA Civ 1798) and the court was clear in that case that a surrogate mother has a right to change her mind about consenting to the Parental Order as it is such a powerful order.
The judgment of AB v CD  EWFC 12 draws attention to the fact that there is a genetic link between the child and the intended parents (in the case of Re C, the surrogate’s egg as well as the Second Respondent’s Sperm was used). The intended parents have made concerted efforts over years to put in place an arrangement (although legally unenforceable) to cause the baby to be born, at some considerable expense. This would have included speaking to lawyers, locating a surrogate, paying pregnancy expenses, maintaining a relationship with that surrogate, making preparations for the child to be born. On the other hand, clearly the surrogate mother has to bear the hardships of pregnancy and birth, not to mention managing the emotional and psychological fallout of giving birth and giving up that child. On both sides, the situation is fraught with risk, insecurity and sacrifice.
In the US, licensed fertility clinics psychologically screen surrogates in order to check that they can withstand the pressures of carrying another couple’s child. It is not clear whether that happened in the case of Re C. (This firm has published case studies setting out how the process of choosing a surrogate works in practice in the US; the process is more streamlined in the US regarding parenthood, so that from the moment of birth the intended parents are the legal parents).
Interestingly, the transcript of the Parental Order hearing on 11 August makes clear that the consent of the surrogate was not, originally, given unconditionally. It seems clear from the transcripts of the hearing that the surrogate is extremely stressed by the situation and that she will only give her consent on the condition that she is permitted to spend time with the child.
The judge is clearly eager to make the Parental Order, saying “I understand what you are saying. It does not help me…get over the legal obstacle”.
Paragraph 41 of the judgment states:
On behalf of the Appellant, Ms Bazley KC, leading Ms Magennis and Ms Elsworth, submitted that the court should not have made a parental order. To the extent that the Appellant said she was consenting, she was not doing so freely and unconditionally. There can be no complaint about the content of the hearing up to the point where she stated her position but at that point the hearing should have ended with the application for a parental order either being dismissed or adjourned. By going on to address the Appellant at such length, the judge unintentionally placed pressure upon her, in particular by referring to her stance as an obstacle that created difficulty and to the parties as being in limbo with no other way forward. In referring to the promise of a child arrangements order she attempted to give reassurance that she was not in a position to give. A degree of judicial encouragement is acceptable in many cases, but it was not appropriate here, particularly as the Appellant was alone and unrepresented and the hearing was a remote one. The judge should have recognised that the Appellant had an absolute right to withhold her consent for any reason whatsoever and that it could not be dispensed with on the basis of welfare factors. At the end of the hearing, the Appellant was crying.
The Respondents submitted interesting arguments that the Court of Appeal should read down s.3(1) of the Human Rights Act 1998 so that the HFEA gave effect to the provisions of the ECHR; so that the child and his intended parents private and family life was not impinged by the refusal to make a Parental Order (the surrogate mother consented to a ‘lives with’ order in favour of the intended parents). The court declined to do so.
Ms Bazley for the Appellant set out that there is a “margin of appreciation” (Valdis Fjölnisdóttir v Iceland, Application no.71552/17, 18 August 2021) afforded to ECHR countries in respect of the orders they can make regarding a child in this situation to reflect arrangements and parentage. As such, the ECHR does not require the Parental Order to be left in place and this would be an unnecessary restriction on the rights of the surrogate mother.
Moving forward, it was unrealistic for the Parental Order to be remitted due to the delay in the case and the hostility between the parties. Instead, the matter should be dealt with through separate proceedings (Children Act proceedings were ongoing). All parties agreed that the child should be raised by the Respondents and have contact with the Appellant. However, that matter would be determined via a separate route and not via Parental Order.
The case shows us how insecure surrogacy arrangements can be at present. Careful thought should be given to parties’ conduct throughout any surrogacy arrangement and subsequent legalisation process. The emotional and psychological implications of surrogacy cannot be underestimated, on both sides.
Hattie Gibson is head of our Creating Families team, based in the London office.