Surrogacy has been on the family law radar for several years now as an area in need of reform. Intended parents of children born via a surrogate are left worryingly vulnerable with the status of parenthood upon the child’s birth, whether or not either or both parents are biologically related to the child.
In England and Wales, the woman who gives birth to a child is legally the mother of that child, meaning all the responsibilities and rights of a parent sit with her. Where the woman is married, her spouse becomes the second legal parent. This is exactly the same even if the baby is not biologically hers.
Therefore, where a child is born through surrogacy, the surrogate mother will be the legal mother until a Parental Order is made, this remains the case even if the surrogacy arrangement took place in a country where pre-birth orders can be obtained and the intended parents registered on the birth certificate. A Parental Order extinguishes the surrogate’s legal parentage to a child and ensures that the intended parents (i.e the parents with whom the child is intended to live with) become recognised as the legal parents. Importantly, the surrogate must give her consent to the order being made. Her consent must be freely given and unequivocal.
R & Anor v A & Anor [2024] – Case analysis
In a unique case in November 2024, the Court was faced with deciding whether this essential consent could be dispensed with in challenging circumstances.
The arrangements for the surrogacy were made in a clinic abroad and the surrogacy agreement between Mrs R and Mr R and Ms A was drawn up in a memorandum, but not signed. The sperm and eggs used were those of the intended parents meaning they were the genetic parents of the child. Unfortunately, there were several pregnancy complications and Ms A suffered a hypoxic brain injury as a result of an anaphylactic reaction to the anaesthetic during birth.
The child was discharged from hospital with the intended parents when he was just under two weeks old. Unfortunately, the surrogate remained in a coma for a fortnight after the birth. The surrogate continued to make small improvements but by November, although she was medically stable, she could not comprehend complex discussions. It was determined that she was lacking capacity to make important decisions and had been represented by an Official Solicitor from July 2024 onwards.
Whilst the Court requires that the surrogate agrees freely and with full understanding of what is involved the law also states if the surrogate is incapable of this, it is not necessary to have her agreement. The matter came before Justice Judd, who heard evidence from the intended parents, as well as a Children’s Guardian who represented the child, and Ms A’s unmarried partner. All the witnesses agreed that the Parental Order should be granted, and the surrogate’s consent dispensed with. The guardian witnessed the child in the care of the intended parents and spoke to the surrogate’s partner who explained that his partner had been a surrogate for families in the past and had done so for 20 years. She took great satisfaction in providing families who could not conceive naturally with a child of their own and if she was able, she would agree to the making of the Parental Order.
Thus, Justice Judd made the decision to grant the Parental Order for the following reasons:
- The intended parents were married, over 18 and domiciled in England (parties can also be in a Civil Partnership or enduring family relationship i.e cohabiting for a significant period of time);
- The child had lived with the intended parents since he was 3 weeks old (the child must be living with the intended parents);
- The application was made when he was 2 months old (the application must be made within 6 months of the child’s birth);
- The gametes of both parents were used to create the embryo (the gametes of at least one parent must be used).
The main issue in this case is the fact that the surrogate could not give consent to the Order being made and this was the first case of its kind. When considering whether to dispense with consent the Court must consider:
- Reasonable efforts should be made to locate the surrogate;
- The Court is required to take into account any evidence that she did consent;
- The child’s welfare throughout their life is the Court’s paramount consideration
It was concluded that the surrogate was incapable of providing her consent but it was not proportionate to adjourn the hearing to obtain an independent expert report to consider the surrogate mother’s capacity to agree.
Justice Judd felt the Parental Order was ultimately in the child’s best interests and all evidence before her indicated that if the surrogate mother could give consent to the Parental Order, then she would have.
What’s next?
This was the first case of its kind, and although the law permits for a surrogate’s consent to be dispensed with in specific and limited circumstances, it will not become common place. There are naturally questions that arise about the state of surrogacy law in England and Wales.
Surrogacy laws are in desperate need of reform and the most important required change of all is to enable parents to obtain legal rights for the child prior to birth. At present parents do not have any legal rights for the child once they are born and must apply for a Parental Order from the Court within the first 6 months of the child’s life. This leave the child, surrogate and parents in a state of uncertainty when they should be celebrating the birth of their beautiful child.
A reform would mean that all necessary paperwork would be completed prior to the birth and from birth the parents would have legal rights over the child, albeit the Law Commission recommendation does still provide for a period of time in which the surrogate could withdraw her consent.
Sophie Croft is an Associate and Liza Gatrell is a Managing Partner at Stowe Family Law
