C (Surrogacy: Consent)

Factual and Procedural Background

On 11 August 2021, a parental order was made in respect of a boy under one year old ("the Child") in favour of the Respondents. The Appellant is the surrogate and biological mother of the Child. The Appellant was granted permission to appeal out of time on 14 July 2022, and the hearing was transferred to the Court of Appeal under the Family Procedure Rules 2010.

The parties met in late 2018, and the Appellant agreed to act as a surrogate for the Respondents, with a surrogacy agreement signed in May 2019. After an unsuccessful IVF attempt with a donor egg, artificial insemination was carried out using the Appellant's egg and the Second Respondent's sperm, resulting in pregnancy. The relationship between the parties deteriorated during pregnancy. The Child was born in September 2020 and handed over to the Respondents seven hours later.

The Respondents applied for a parental order in November 2020, which the Appellant opposed, stating she did not consent. After mediation and a parental order report from CAFCASS that did not recommend the order due to lack of consent, the matter proceeded before the court. On 11 August 2021, the judge made a parental order and a child arrangements order, including contact provisions for the Appellant.

Following the order, the Appellant stated she had felt pressured and only gave conditional consent but did not initially seek to appeal. Contact arrangements were partially complied with but later disrupted. The Respondents applied to vary or discharge the contact order, and further proceedings under the Children Act followed, including appointment of a Children's Guardian. The Appellant then sought permission to appeal the parental order, which was granted out of time.

Legal Issues Presented

1. Whether the court had the power to make the parental order given that the Appellant did not provide free and unconditional consent as required by section 54(6) of the Human Fertilisation and Embryology Act 2008 (HFEA 2008).
2. Whether, if valid consent was not given, the court should nevertheless uphold the parental order on welfare or Convention rights grounds.
3. What order the Court of Appeal should make regarding the parental order application if the above questions are answered negatively.

Arguments of the Parties

Appellant's Arguments

• The court lacked power to make the parental order without free and unconditional consent from the Appellant under section 54(6) HFEA 2008.
• The Appellant’s consent was neither free nor unconditional but was given under pressure and conditional on a child arrangements order.
• The hearing should have been adjourned or dismissed when the Appellant expressed conditional consent, rather than the judge pressing for unconditional consent during the hearing.
• The requirement for free and unconditional consent is fundamental and cannot be overridden by welfare considerations or judicial encouragement.
• Even if the parental order is set aside, the Appellant agrees that the Child should live with the Respondents but will not consent to a parental order.
• The statute does not provide for a power to dispense with consent, and reading such a power into the legislation would be impermissible.

Respondents' Arguments

• The judge was entitled to find that the Appellant gave free and unconditional consent, particularly given her eventual oral confirmation during the hearing.
• The parental order and child arrangements order can coexist and be made sequentially, satisfying the consent requirement.
• The judge's explanation and invitation to apply for a child arrangements order was neutral and did not improperly pressure the Appellant.
• The welfare consequences for the Child of setting aside the parental order are profound and must be considered, especially given the Child’s settled life with the Respondents.
• The Court should interpret section 54(6) and (7) as permitting the court to dispense with consent to avoid violating Convention rights, particularly Article 8 rights to respect for family life.
• They relied on Convention jurisprudence and statutory interpretation principles to argue for a “bespoke interpretative solution” to uphold the parental order despite lack of formal consent.
• They did not argue that the consent provisions were incompatible with the Convention but urged a reading that balances the rights involved.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first examined whether the Appellant's consent was free and unconditional as required by section 54(6) HFEA 2008. The Court emphasized that the statutory language is clear and must be applied strictly: consent must be free, informed, and unconditional. The Appellant's consent was given orally during a remote hearing, under circumstances that risked undue pressure, especially given her unrepresented status. The Court found that the Appellant's consent was conditional on the making of a child arrangements order and was not freely or unconditionally given.

The Court noted that the judge correctly identified the statutory test and the importance of free consent but erred by continuing to press the Appellant for unconditional consent during the hearing, effectively applying pressure. The Court considered that the judge should have adjourned or dismissed the application upon the Appellant’s clear statement of conditional consent, rather than proceeding to make the order immediately.

Regarding the suggestion that the Court should interpret the statute to allow dispensing with consent on welfare or Convention grounds, the Court rejected this. It held that the surrogate's right to withhold consent is a fundamental pillar of the legislation, and no such dispensing power exists or can be implied. The Court recognized that setting aside the parental order engages Article 8 rights but concluded that these rights are not violated by the absence of valid consent, especially given the availability of adoption and the margin of appreciation afforded to States.

Finally, the Court considered the appropriate order to make. Given the passage of time, deterioration in relationships, and the Appellant’s firm refusal to consent, the Court concluded that remitting the application would perpetuate the flawed process. Therefore, the appeal was allowed and the application for the parental order dismissed. The Court noted that arrangements for the Child’s upbringing and contact remain agreed but are outside the scope of the appeal.

Holding and Implications

The Court’s final decision is to ALLOW THE APPEAL AND DISMISS THE APPLICATION FOR A PARENTAL ORDER.

The direct effect is that the parental order made on 11 August 2021 is set aside due to the Appellant’s lack of free and unconditional consent as required by law. The Court emphasized the strict statutory requirement for consent and rejected any implied dispensing power to override this. No new precedent was established beyond reaffirming the fundamental nature of the consent requirement under section 54(6) HFEA 2008.

The Court recognized that the Child will continue to be raised by the Respondents and that contact with the Appellant remains intended by all parties, but the legal mechanisms for these arrangements fall outside this appeal. The decision highlights the legal limits on parental orders in surrogacy cases and the protection of surrogate mothers' rights under current legislation.