Court of Appeal Reinforces Unconditional Consent in Parental Orders for Surrogacy: C (Surrogacy: Consent) [2023] EWCA Civ 16

Introduction

The case of C (Surrogacy: Consent) ([2023] EWCA Civ 16) before the England and Wales Court of Appeal (Civil Division) marks a significant development in the jurisprudence surrounding surrogacy and parental orders. The dispute centers on whether the surrogate mother, who is also the biological mother, provided the necessary free and unconditional consent required under section 54(6) of the Human Fertilisation and Embryology Act 2008 (HFEA 2008) for a parental order to be granted to the intended parents.

The primary parties involved are the Appellant, who served as the surrogate and biological mother of the child, and the Respondents, the intended parents seeking to obtain a legal parental order. The crux of the appeal lies in whether the court erred in granting the parental order despite the Appellant's claim that her consent was conditional and not freely given.

Summary of the Judgment

On January 16, 2023, the Court of Appeal delivered its judgment in the case of C (Surrogacy: Consent). The Appellant appealed against the parental order granted on August 11, 2021, arguing that her consent was neither free nor unconditional as required by HFEA 2008. The original court had granted the parental order, thereby legally transferring parenthood from the surrogate to the intended parents, alongside a child arrangements order facilitating contact between the Appellant and the child.

The Court of Appeal meticulously examined the circumstances under which consent was obtained. It concluded that the Appellant's consent was contingent upon the establishment of a child arrangements order, thus failing to meet the "free and unconditional" threshold mandated by law. Furthermore, the court rejected the argument for a dispensing power that would allow the parental order to stand despite the lack of valid consent. Consequently, the appellate court allowed the appeal, setting aside the parental order and upholding the necessity of genuine, unconditioned consent in surrogacy arrangements.

Analysis

Precedents Cited

The judgment extensively references several key cases that have shaped the legal landscape of surrogacy and parental orders:

AB v CD [2015] EWFC 12 – Highlighted the transformative nature of parental orders compared to adoption.
G v G [2012] EWHC 1979 (Fam) – Emphasized the surrogate's unequivocal consent as a non-negotiable requirement.
Re Z (Surrogacy Agreement) [2016] EWFC 34 – Demonstrated that lack of consent can lead to the refusal of a parental order.
Re AB (Surrogacy: Consent) [2016] EWHC 2643 (Fam) – Showed that the court must uphold consent standards irrespective of relationship dynamics.
Re H (A Child) [2017] EWCA Civ 1798 – Described consent to parental orders as "unique," reinforcing the surrogate's autonomy.
A v P (Surrogacy: Parental Order: Death of Applicant) [2011] EWHC 1738 (Fam) and Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam) – Instances where parental orders were made notwithstanding strict statutory criteria, though deemed exceptions.
Mennesson v. France Application no. 65192/11 – Addressed the State's margin of appreciation concerning a child's legal status.
AM v Norway Application no. 30254/18 – Discussed the margin of appreciation States hold in family law matters.
Valdis Fjölnisdóttir v Iceland, Application no.71552/17 – Related to adopting legal relationships to protect children's rights.
Ghaidan v Godin-Mendoza [2004] UKHL 30 – Used to support arguments about interpretative flexibility within the legislation.

These precedents collectively underscore the judiciary's consistent stance on upholding the surrogate's consent as paramount in the granting of parental orders, ensuring that the legal framework prioritizes the rights and autonomy of the surrogate mother.

Legal Reasoning

The Court of Appeal's legal reasoning can be dissected into several critical components:

Strict Interpretation of Consent Requirements: The court emphasized that section 54(6) of the HFEA 2008 mandates that both the surrogate and any other legal parents must give consent freely and unconditionally. Any conditional consent, as demonstrated by the Appellant, falls short of this standard.
Rejection of Dispensing Power: The Appellant posited that the Court should possess a dispensing power to override the lack of unconditional consent in the interest of the child's welfare. The appellate court, however, firmly rejected this notion, stating that introducing such a power would undermine the legislative intent and the surrogate's fundamental rights.
Protection of Autonomy: The judgment reinforced the principle that surrogate mothers retain significant autonomy over their parental rights, ensuring they are not coerced or unduly influenced during the consent process.
Margin of Appreciation: While acknowledging the State's margin of appreciation in family law cases, the court maintained that this margin does not extend to altering fundamental statutory requirements, such as the unconditional nature of consent in surrogacy arrangements.
Exceptionality of Previous Cases: The court distinguished the present case from previous instances where parental orders were made despite strict criteria, reaffirming that such exceptions are rare and context-dependent.

This comprehensive legal reasoning ensures that the judicial process remains aligned with the statutory framework, emphasizing the indispensability of genuine consent in the formation of parental orders within surrogacy contexts.

Impact

The decision in C (Surrogacy: Consent) sets a robust precedent for future cases involving surrogacy and parental orders. Its implications are multifaceted:

Reaffirmation of Consent Standards: The judgment solidifies the necessity for unconditional and freely given consent from surrogate mothers, eliminating any ambiguity regarding conditional agreements.
Judicial Boundaries: By rejecting the notion of a dispensing power, the court delineates clear boundaries within which it may operate, ensuring that legislative mandates are not overridden by judicial discretion.
Protection of Surrogates: The ruling enhances the legal safeguards surrounding surrogate mothers, ensuring their autonomy is respected and their consent is not commodified or coerced.
Guidance for Legal Practitioners: This judgment provides clear guidance for solicitors and family law practitioners on the critical importance of securing and verifying unconditional consent in surrogacy agreements.
Influence on Legislative Reforms: The decision underscores areas where legislative reforms may be considered, particularly regarding the integration of child arrangements alongside parental orders.

Overall, the judgment reinforces the current legal framework's integrity, ensuring that the rights of all parties, especially the surrogate mother, are upheld in the surrogacy process.

Complex Concepts Simplified

The legal intricacies of surrogacy and parental orders can be daunting. This section elucidates some of the complex concepts involved in the judgment:

Parental Order: A legal mechanism in the UK that transfers parental rights from the surrogate mother to the intended parents, making them the legal parents of the child.
Section 54(6) HFEA 2008: A statutory requirement that mandates both the surrogate mother and any other person acting as a parent must provide consent freely and unconditionally for a parental order to be granted.
Dispensing Power: The theoretical ability of a court to deviate from strict statutory provisions based on exceptional circumstances or interests, which in this case, was proposed but ultimately rejected.
Margin of Appreciation: A doctrine in human rights law allowing states some discretion in how they apply rights, acknowledging that some issues require local or contextual consideration.
Convention Rights: Rights enshrined in international conventions, such as the European Convention on Human Rights, which the UK courts are obliged to uphold.

By understanding these terms, stakeholders can better navigate the legal processes associated with surrogacy arrangements and parental orders.

Conclusion

The Court of Appeal's decision in C (Surrogacy: Consent) underscores the paramount importance of free and unconditional consent in the granting of parental orders within the UK surrogacy framework. By strictly interpreting section 54(6) of the HFEA 2008 and rejecting any form of judicial dispensation, the court reinforces legislative intent and safeguards the autonomy of surrogate mothers.

This judgment serves as a pivotal reference point for future surrogacy cases, emphasizing that consent cannot be compromised by additional conditions or perceived pressures, even in the context of the child's welfare. It ensures that the rights of all parties are balanced thoughtfully, respecting both the surrogate's autonomy and the intended parents' aspirations within the bounds of the law.

Ultimately, this case reaffirms the judiciary's role in upholding statutory requirements and protecting individual rights, contributing to a more transparent and equitable legal landscape for surrogacy arrangements in England and Wales.