Re C (surrogacy: consent)
| Jurisdiction | England & Wales |
| Judge | KING,THIRLWALL,PETER JACKSON LJJ |
| Judgment Date | 16 January 2023 |
| Court | Court of Appeal (Civil Division) |
Surrogacy – Consent – Expressed as conditional on making of child arrangements order – During remote hearing expressed as unconditional following conversation with judge – Whether complied with statutory requirements – Whether requirements could be waived in reliance on ECHR.
In 2018 the biological mother offered to act as a surrogate for the couple. In May 2019, a surrogacy agreement was signed. In November 2019, following an unsuccessful IVF attempt using a donor egg and the sperm of one of the couple, there was a successful artificial insemination using the biological mother’s egg and sperm from one of the couple.
Although the relationship between the biological mother and the couple deteriorated during the pregnancy, in September 2020, seven hours after birth the child was handed over to the couple. The biological mother received postnatal counselling at the couple’s expense. In November 2020, the couple applied for a parental order but when, in early January 2021, the biological mother returned the form of acknowledgement to the court, she said that she did not consent to the making of the parental order and would oppose the application; she also wrote to the couple, explaining her position. The couple paid for her to receive legal advice and some legal help to draft her court statement. In February 2021, following a mediation, everyone agreed to work on their relationship and to rebuild trust.
In June 2021, the parental order reporter filed her report; she was unable to recommend that a parental order be made because the biological mother had not consented ‘due to wanting to keep her parental responsibility to allow her to have legal rights to spend time with C.’
Following an inconclusive hearing before the magistrates, the biological mother filed a statement acknowledging that it had always been anticipated that she would consent to a parental order, but explaining that her position had changed because of her unexpected feelings for the child and because she had anticipated being a significant person in the child’s life, although not a mother figure, but now felt pushed out. She said she would consent to a parental order on two conditions: that a child arrangements order was made providing for monthly contact and that a prohibited steps order was made preventing the couple from moving without her written agreement.
During the hearing, which was conducted remotely, the mother, who was in person, explained to the judge ‘I am fearful that I won’t have time to spend time with C and so that’s why I can’t quite unconditionally consent … I do feel that having a child arrangements order is best for all of us along with a parental order being made, but I couldn’t lie and say that I do give my consent unconditionally’. However, following an exchange with the judge about the benefits of a parental order, the problem of ‘limbo’ for the child if a parental order were not made, and the impossibility of linking the parental order directly to the child arrangements order, which the judge described as ‘the legal obstacle’. The biological mother gave her consent orally in the face of the court, remotely, stating that it was unconditional consent, on the basis that ‘I don’t see that there is any other way for us to move forward’. The judge went on to make a parental order and a child arrangements order, consisting of a ‘lives with’ order in favour of the couple (‘for the avoidance of doubt’) and a contact order whereby the child would spend one weekend day with the biological mother every six weeks and two additional weekend days each year with her to celebrate his birthday and Christmas.
The next day, the biological mother emailed the couple’s solicitors, stating that she had felt under pressure to consent to the parental order and that in her view she had only provided conditional consent. However, she did not, at that stage, seek to appeal. Between September and December 2021, she had contact with the child, as ordered, but the contact scheduled for January 2022 did not take place. In February, the couple issued an application seeking to discharge or vary the terms of the child arrangements order and the February contact with the biological mother again did not take place. In March, on the recommendations of Cafcass, the district judge suspended direct contact, while assessments were undertaken, and ordered indirect contact. In July the biological mother was granted permission to appeal out of time in respect of the parental order (but refused permission to appeal in relation to the suspension of contact).
Under s 54(6) of the Human Fertilisation and Embryology Act 2008, before making a parental order in relation to a child born through a surrogacy arrangement:
‘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’.
The grounds of appeal were that the court had not had power to make the parental order, because it had been clear at the hearing that the biological mother’s consent was being given conditionally rather than ‘unconditionally’ and also because it had not been given ‘freely’.
Held, allowing the appeal—
(1) There were three questions to be answered: (i) whether, on a straight reading of s 54(6) of the Human Fertilisation and Embryology Act 2008, the biological mother had given free and unconditional consent to the making of the parental order; (ii) whether, if not, the European Convention on Human Rights required the court to assume and exercise a power to dispense with consent, in order to preserve the parental order; and (iii) what order this court should make in respect of the underlying application for a parental order if the answer to each of the above questions was ‘No’ (see [53], below).
(2) The requirement that a person had ‘freely, and with full understanding of what is involved, agreed unconditionally to the making of the order’ meant exactly what it said. Although it might be forensically convenient to separate out the individual elements, what was required was a consent that was free, informed and unconditional. If that was achieved, it was immaterial whether the consent was given gladly or reluctantly (see [54], below).
(3) Where there was any doubt about consent, it would be a matter for the court, giving consideration to all the circumstances. One relevant factor was likely to be the means by which consent had been expressed. Because of the profound consequences of the underlying choice, it was normal for there to be a degree of formality. This was reflected in the preference in FPR 13(11) for consent to be in writing, using Form 101A and with the parental order reporter as witness. Even then, consent could be withdrawn at any stage before the order was made. This degree of formality was not mandatory, but its absence should put the court on its guard to ensure that the proffered consent was valid. In the present case, the disputed consent had been given orally in the face of the court and remotely. In that unusual situation, a sharp eye had to be kept on the possibility that the court process might of itself be exerting pressure to the extent that any stated consent would be devalued (see [55], below).
(4) The judge had correctly identified the statutory test in s 54(6) and been alive to the importance of consent being freely given. She had also recognised the danger of mixing up the issues of a parental order and the biological mother having contact with the child. However, faced with the mother’s statement about giving only conditional consent, which the judge herself described as ‘very clear’, the judge should have held to the line that it was inappropriate to pursue the matter further, at least during that hearing. She might have adjourned to give the parties a further opportunity to consider their positions, but it had not been right to expect the biological mother to do that during the course of the hearing. Even if it had been reasonable to explore the matter further, the judge should certainly have paused at the point where the biological mother appeared willing to relent, so that her consent could be taken in writing in a non-pressured and witnessed setting (see [56], [57], below).
(5) A number of other objective features should have put the judge on her guard. This had been a remote hearing in a sensitive case, with the biological mother alone and unrepresented. The inevitable stress on any litigant had then been inadvertently exacerbated by the way in which the biological mother had found herself out on a limb, with her position on consent being represented as the only obstacle to an overall solution. Also, an unrepresented litigant addressed by a judge at some length might be influenced by feelings of deference. The judge’s motivating welfare assessment had very probably been sound but this had had nothing to do with the question of consent. Had the resulting arrangements been satisfactory to all concerned, the problems with consent would no doubt have faded from memory, but the fact that the outcome had been so disappointing so far tended to show that the order had not been built on solid foundations (see [58], below).
(6) As a matter of principle, it was possible to conceive of a parental order and a child arrangements order coexisting. None of the reported cases had had that outcome, but they might not be representative of all problematic surrogacies. Some unproblematic surrogacies did not lead to parental orders at all, and contact with a surrogate would sometimes take place without any thought of a child arrangements order, even where a parental order had been made. However, in cases where there was less trust, there must still be a narrow path available to parties who genuinely agreed that dual orders were the solution. While the statute did not...
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