Re C (Surrogacy: Consent)

Hearing date: 3 November 2022

Approved Judgment

This judgment was handed down remotely at 10.30am on 16 January 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

On 11 August 2021, a parental order was made in respect of C, a boy then under a year old, in favour of the Respondents to this appeal. The Appellant is his surrogate and biological mother. On 14 July 2022, she was granted permission to appeal out of time by Theis J, who transferred the hearing of the appeal to the Court of Appeal under Rule 30.13 of the Family Procedure Rules 2010.

The central issue raised by the appeal is a simple one, but it is of great importance to the adults and to C. The Appellant argues that the court did not have the power to make the parental order as she had not given the free and unconditional consent that is required by section 54(6) of the Human Fertilisation and Embryology Act 2008 (‘HFEA 2008’). In consequence, she submits that the order must be set aside. The Respondents contend that the necessary consent was given, but if that is not so, they argue that the parental order should nevertheless be left in place.

Background

The parties met in late 2018, when they were introduced to one another by the Appellant's sister. After a time, the Appellant offered to act as a surrogate for the Respondents and in May 2019 a surrogacy agreement was signed. In May/June 2019, an unsuccessful IVF attempt was made using a donor egg and the Second Respondent's sperm. In November 2019, artificial insemination took place using the Appellant's egg and the Second Respondent's sperm. The following month, the Appellant informed the Respondents that she was pregnant.

In Spring 2020, the relationship between the parties deteriorated. The Appellant describes becoming increasingly emotionally attached to the baby and feeling undervalued by the Respondents. The Respondents say that the Appellant kept them at arm's length during the pregnancy and was unwilling to share information.

In September 2020, C was born and was handed over by the Appellant to the Respondents 7 hours after birth. Following the transfer, the Appellant described feeling a sense of loss and she received postnatal counselling at the Respondents' expense.

On 27 November 2020, the Respondents applied for a parental order. On 4 January 2021, the Appellant returned the form of acknowledgement to the court saying that she did not consent to the making of the parental order and opposed the application. At the same time, she wrote to the Respondents explaining her position.

In January 2021, the Appellant received brief legal advice, paid for by the Respondents, and some legal help to draft her court statement. In February 2021, the parties attended mediation and agreed to work on their relationship and rebuild trust.

On 7 June 2021, Mrs Chapman, the parental order reporter appointed by CAFCASS, filed her parental order report. She was unable to recommend that a parental order be made as the Appellant had not consented “due to wanting to keep her parental responsibility to allow her to have legal rights to spend time with C.”

On 8 June 2021, the application came before magistrates at hearing at which the parties were unrepresented. The Respondents invited the court to make a ‘lives-with’ order in their favour, which would give parental responsibility to the First Respondent. Although the Appellant supported this course, the magistrates declined to make the order on the basis that her “consents… will need to be fully and clearly established”. The parties agreed to attend mediation. The matter was reallocated to Her Honour Judge Gordon-Saker (‘the judge’) for a one-hour hearing on 11 August 2021.

On 22 June 2021, the Appellant filed a statement in which she acknowledged that it was always anticipated that she would consent to a parental order. However, her position had changed because of her unexpected feelings for C and because she had anticipated being a significant person to him (though not a mother figure), but she now felt pushed out. She stated that she would consent to a parental order being made on two conditions: that a child arrangements order was made providing for monthly contact and that a prohibited steps order was made preventing the Respondents from moving without her written agreement.

On 11 August 2021, the application came before the judge. The Respondents were represented by counsel. The hearing took place via CVP. The Appellant appeared in person and Mrs Chapman was also present on the telephone. At the end of the hearing, the judge made a parental order and a child arrangements order, consisting of a ‘lives with’ order in favour of the Respondents (“for the avoidance of doubt”) and a contact order whereby C would spend one weekend day with the Appellant every six weeks and two additional weekend days each year to celebrate his birthday and Christmas.

The next day, the Appellant emailed the Respondents' solicitors, stating that she had felt under pressure to consent to the parental order and had only provided conditional consent. She did not at that stage seek to appeal.

Between September 2021 and December 2021, the Appellant had contact with C as ordered. However, scheduled contact on 2 January 2022 did not take place.

On 8 February 2022, the Respondents issued an application seeking to discharge or vary the terms of the child arrangements order. On 13 February 2022, the scheduled contact did not take place; the Appellant attended the Respondents' home, but they would not permit contact.

On 11 March 2022, the District Judge heard submissions from the parties about the Respondents' application and gave directions. The Appellant said that she intended to seek permission to appeal the parental order.

On 31 March 2022, on the recommendation of CAFCASS, the District Judge suspended direct contact while assessments were undertaken, and in the interim ordered indirect contact. On 28 July 2022, by consent, C was joined as a party to the Children Act proceedings, which are ongoing, and a Children's Guardian was appointed.

On 14 July 2022, Theis J granted permission to appeal out of time in respect of the parental order, while refusing permission to appeal in relation to the suspension of contact. On 9 August 2022, C's Guardian stated that she did not seek to join the appeal unless directed by this court.

Parental orders

Surrogacy is legal in the UK, although surrogacy arrangements are not enforceable in law. At birth, the surrogate (and, if she is married or in a civil partnership, her consenting spouse or civil partner) will be the legal parent(s) of the child. Following the birth, a legal process – the parental order process – takes place to transfer legal parenthood from the surrogate to the intended parents (‘IPs’).

The application for a parental order is governed by section 54 HFEA 2008, the Human Fertilisation and Embryology (Parental Order) Regulations 2018, and Part 13 of the Family Procedure Rules 2010. When IP(s) submit a parental order application, the court will ask CAFCASS to appoint a parental order reporter to investigate the circumstances of the case and submit a parental order report.

Under section 54 (section 54A has similar provisions in the case of a single applicant) the court may grant a parental order to a couple in respect of a child born through a surrogacy arrangement where such an order meets the child's welfare needs in accordance with section 1 Adoption and Children Act 2002, and the following criteria are satisfied:

(1) The child has been conceived artificially and is genetically related to one of the IPs (subsection 1)

(2) The IPs are married, in a civil partnership or living as partners in an enduring relationship (ss. 2).

(3) The IPs have applied within 6 months of the child's birth (ss. 3).

(4) The child is living with the IPs and at least one of them is domiciled in the UK (ss.4).

(5) The IPs are over 18 years old (ss.5).

(6) The surrogate has been paid no more than reasonable expenses, unless authorised by the court (ss.8).

Section 54(6), with which the present case is concerned, provides that:

“(6) 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.”

Subsection (7) provides that subsection (6) does not require the agreement of a person who cannot be found or is incapable of giving agreement, and that the agreement of the surrogate is ineffective if given less than six weeks after the child's birth.

FPR 2010 Part 13 addresses the procedural requirements for the making of a parental order. Rule 13.11 provides that:

(1) Unless the court directs otherwise, the agreement of the other parent or the woman who carried the child to the making of a parental order may be given in the form referred to in Practice Direction 5A or a form to the like effect.

The form provided for in PD5A is Form A101A. It contains the same general content as Form A104, the consent form for adoption, and is in these terms:

“I agree to a parental order...