surrogacy consent

Stowe family lawyer Tamara Adams explores potential complications in surrogacy cases and asks do surrogates need to give consent for a parental order to be made in the UK, and how should that consent be given?
What is a Parental Order?
A Parental Order is an order obtained by the court post birth which makes the intended parents of the child the legal parents and permanently extinguishes the legal status and responsibilities of the surrogate and, if applicable, their spouse.
After a Parental Order has been made, a UK Birth Certificate will be issued recording the intended parents as the legal parents. This replaces the original birth certificate.
To obtain a parental order, the intended parents must satisfy the family court that they meet all the criteria set out in Section 54 (for couples) and Section 54A (for single parents) of the Human Fertilisation and Embryology Act 2008. These are:

There must be a genetic link to the child with at least one of the intended parents
The application can be made by an individual, or a couple who are married, in a civil partnership or enduring relationship
An application must be made within 6 months of birth
The surrogate and their spouse must freely consent to the order being made. This consent cannot be given within 6 weeks of the child’s birth
The Applicant(s) must be domiciled in the UK
The child must be living with the applicant(s) at the time of the application; and
The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred or authorised by the court) has been given or received by either of the applicants for, or in consideration of, the surrogacy arrangement

A question of surrogate consent
Many of the Parental Order requirements have needed judicial clarification. Most recently in Re C (Surrogacy: Consent) [2023] EWCA Civ 16 whereby the Court of Appeal provided essential guidance on the requirement for consent from the surrogate.
Within this case, the surrogate provided consent to a Parental Order being made on the basis the Court also made a Child Arrangement Order to allow for the surrogate to spend time with the child.
In August 2021, a Parental Order was made alongside a child arrangement order for regular contact between the surrogate and the child. The surrogate then sought to appeal on the basis she had not provided free and unconditional consent. As a result, she sought for the Parental Order to be set aside.
The intended parents argued that the necessary consent was given, but if that is not so, they contended that irrespective, the parental order should be left in place and section 54(6) of the Human Fertilisation and Embryology Act 2008 can be read in a way as to confer a dispensing power upon the court.
The case background

A surrogacy agreement was signed prior to insemination
The surrogate was pregnant and then, the relationship between the parties deteriorated
The child was born, and the surrogate received postnatal counselling
The intended parents then applied for a parental order but the surrogate returned the form of acknowledgement stating she did not consent to the making of the order and opposed the application
The surrogate then provided consent orally in court on the basis that a child arrangements order was made providing for her to have monthly contact and a prohibited steps order to prevent the intended parents from moving without her written agreement
The court in the first instance then proceeded to make a parental order and a child arrangement order. The next day, the surrogate then made contact with the intended parent’s legal team to express she felt under pressure to consent to the order
The contact order begun, and contact took place over time. However, one scheduled contact did not take place. The intended parents then applied to discharge the terms of the contact order and they did not permit contact thereafter
The surrogate then sought permission to appeal the parental order
The appeal was on the basis of two grounds:

The court was wrong to make a parental order when it was clear the surrogate’s consent was being given conditional on the making of a child arrangement order and therefore not “unconditionally”; and
The Court was wrong to make a parental order when the consent provided by the surrogate was not provided “freely”.

Court of Appeal decision
The Court of Appeal considered the wording of Section 54(6) of the Human Fertilisation and Embryology Act 2008 and expressed the right of the surrogate not to provide consent is a pillar of the legislation.
The Court confirmed that if there is any doubt about consent, it will be a matter for the Court to judge, considering all circumstances.
The court confirmed that consent should be in writing. Even then, consent can be withdrawn at any stage before the order is made. This formality is not mandatory but, in its absence, should put the court on its guard to ensure the proffered consent is valid.
In this case, the consent was given orally in a face-to-face court hearing and as such, any stated consent was devalued due to the possibility the court process might in itself be exerting pressure on the surrogate.
The court therefore determined that the European Convention on Human Rights do not require a Parental Order which was made without valid consent from the surrogate.
The court determined that the rights of the intended parents and child are not violated by the setting aside of the order for lack of consent on the part of the surrogate. As a result, the Court of Appeal dismissed the Respondents application for a Parental Order. The appeal was therefore allowed. The Court confirmed the child should be brought up by the intended parents and have contact with the surrogate as was intended by all.
It therefore remained agreed for this to take place but the Court of Appeal did not have the power to make such an order as was beyond the scope of the appeal.
All in all, this case is pivotal in reiterating the importance of obtaining the surrogates free and unconditional consent to a parental order and reiterated the importance of this consent to be provided in writing.
Useful links:
UK surrogacy law FAQs
International surrogacy – what you need to know
Stowe talks: Surrogacy in the UK with My Surrogacy Journey
Guide: Surrogacy and Parental Orders
Why we need surrogacy law reform More