Consent plays a very important role in surrogacy. When a child is born through surrogacy, the surrogate mother automatically becomes the child's legal mother. To transfer legal parentage from the surrogate to the intended parents (read more here about what this means), the intended parents must apply to the court for a parental order. Before making the order, the court looks at various criteria, one of which is that the surrogate mother has given her free, informed and unconditional consent to the order being made If the surrogate doesn't agree, then the parental order can't be made.
Although unusual, the Court of Appeal recently had to grapple with a surrogate mother claiming that her consent to a parental order had been neither unconditional nor free (i.e. free from pressure). In their decision, the judges emphasised just how important consent is in the process, and that it cannot be undermined for any reason.
Unfortunately this particular surrogacy arrangement had broken down quite early on. And although the intended parents were raising the child (who is now two years old), the surrogate had refused to agree to a parental order being made. Court proceedings started. At a hearing, the surrogate eventually said that she would agree to the parental order being made provided that there were additional court orders made meaning that she would see the child once a month and that the intended parents could not move away without her agreement.
The judge made the parental order but the arrangements for the surrogate mother to spend time with the child fell apart. She went back to the court saying that she had been put under pressure to agree to the parental order, and that her agreement had been conditional. She wanted it removed. The intended parents disagreed and said that, in any event, the child's welfare meant that the parental order should stay in place.
The Court of Appeal agreed with the surrogate mother. Not only had her agreement been conditional on other orders and arrangements being made but the evidence showed that she had been under pressure to agree to the order. Some of the factors the court took into account were that the hearing had been held remotely and that the surrogate had been alone and not legally represented. She had been told by the judge that she was the only obstacle to a solution being found and this inevitably put pressure on her to agree. She had been given no time or space to consider her position. The Court of Appeal emphasised just how important it was that when surrogates agree to parental orders being made, they do so fully informed of the consequences, they do so unconditionally and they do so without being put under any pressure. This is non-negotiable.
It is widely accepted that surrogacy law within the UK needs reform and has done for many years. At times, this has led the Courts to interpret existing statutes to fit a modern purpose. For example, it has led to extensions to application time limits and a generous interpretation of ‘reasonable expenses’. This case could have been another show of judicial creativity, but instead the court was clear: consent of a surrogate must be free and unconditional. It was not willing to interpret anything different into the law.
If you or a family member are considering surrogacy or fertility treatment to grow your family, legal advice from the outset is invaluable. We have internationally recognised specialists who can guide you on everything from assisted reproduction to questions around inheritance, immigration and citizenship. Contact them for solution-focused advice provided in a safe and support environment.