R & Anor v A & Anor

Factual and Procedural Background

This is an application for a parental order by the Applicants, a married couple, concerning a child born via surrogacy. The surrogate mother, Ms. A, suffered a severe medical complication during delivery, resulting in hypoxic brain injury and cognitive impairment. The Applicants had previously experienced complications in childbirth, which led them to pursue surrogacy. They met Ms. A online, who had prior experience as a surrogate and agreed to carry their child using the Applicants' gametes. The pregnancy was complex, with medical issues including bleeding and a low-lying placenta. At birth, Ms. A suffered cardiac arrest, and the child required neonatal intensive care but stabilized quickly. The child was made a ward of court and placed in the Applicants' care, with subsequent interim child arrangements orders granted. Ms. A was certified as lacking litigation capacity and is represented by the Official Solicitor.

Legal Issues Presented

1. Whether the court can dispense with the surrogate mother's agreement to the parental order on the basis that she is incapable of giving consent under section 54(7) of the Human Fertilisation and Embryology Act 2008 (HFEA).
2. Whether the statutory conditions for making a parental order under section 54 HFEA 2008 have been satisfied by the Applicants.
3. The application of the welfare principle under the Adoption and Children Act 2002 in the context of parental orders.
4. The extent to which the court should consider the surrogate mother's cognitive capacity and the proportionality of obtaining further expert evidence.
5. Whether the financial payments made to the surrogate comply with the statutory requirements under section 54(8) HFEA 2008.

Arguments of the Parties

Applicants' Arguments

• The Applicants submit that all statutory criteria for a parental order are met, including genetic parentage, relationship status, domicile, and timing requirements.
• They argue that the surrogate mother is currently incapable of giving her agreement under section 54(7) HFEA due to her cognitive impairment, supported by medical evidence.
• They invite the court to dispense with the surrogate's agreement on this basis and to authorise the payments made as compliant with the Act.

Respondent Surrogate Mother's Representatives' Arguments

• The Respondent's legal representatives support the making of the parental order.
• The Official Solicitor advocates a proportionate and pragmatic approach regarding the need for further capacity evidence, relying on existing contemporaneous evidence and the wider impact on the surrogate and her family.

Guardian's Arguments

• The Guardian appointed to represent the child supports the application, noting the child is thriving in the Applicants' care within a loving and stable family environment.
• The Guardian considers the financial payments reasonable and consistent with domestic surrogacy arrangements and does not believe the surrogate was exploited or coerced.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the statutory framework under section 54 of the HFEA 2008, noting that all formal criteria for the parental order were met: the Applicants are married, over 18, domiciled in the UK, and genetically related to the child. The pivotal issue was the surrogate mother's agreement under sections 54(6) and (7), complicated by her cognitive impairment.

The court distinguished the consent provisions of the HFEA from those of the Adoption and Children Act 2002, emphasizing that the HFEA does not allow consent to be overridden on welfare grounds, but does permit dispensing with consent if the surrogate is incapable of agreement.

Medical evidence demonstrated that Ms. A was cognitively impaired and unable to comprehend complex information or make an informed, unconditional agreement regarding the parental order. The court found that the surrogate mother lacked the capacity to give valid agreement under the statutory test, which requires free and full understanding of what is involved.

Given the clarity of the evidence, the court deemed it unnecessary and disproportionate to adjourn the case for further expert capacity assessments. The court also authorised the financial payments made to the surrogate as reasonable expenses consistent with the law.

In considering the welfare of the child, the court noted that the child has been living with the Applicants since infancy in a loving and stable environment, with no safeguarding concerns. The child is genetically related to the Applicants, and the arrangement was always intended for them to parent the child. The court acknowledged the surrogate's altruistic motivation and her inability to consent due to her medical condition.

Holding and Implications

The court made the parental order sought by the Applicants, thereby legally recognising them as the child's parents.

Holding: The parental order is granted, dispensing with the surrogate mother's agreement due to her incapacity under section 54(7) HFEA 2008, and authorising the payments made to her as compliant with the statutory regime.

Implications: This decision confirms that a parental order may be made where the surrogate mother is incapable of giving agreement, provided the court is satisfied on the facts. The ruling underscores the court's careful balancing of statutory criteria, surrogate capacity, and child welfare without setting new precedent beyond the facts of this case. The child’s legal parentage is established, ensuring stability and clarity for the family.