Surrogacy: The strict approach to consent

When a child is born following a surrogacy arrangement, under English law, the surrogate will always be considered the child’s legal mother, regardless of whether there is a genetic link between her and the baby.

If the surrogate is married or in a civil partnership at the time of conception, their spouse or civil partner will be the child’s second legal parent (unless they did not consent to the fertility treatment). If the surrogate is not married or in a civil partnership, the intended father may be the child’s legal father if they are genetically linked to the child.

To extinguish the surrogate’s legal parentage (and their spouse’s or civil partner’s) and be recognised as the child’s legal parents under English law, the intended parents must apply to court for a parental order.

When deciding whether to make a parental order, the court will assess whether the criteria in s54/s54A Human Fertilisation and Embryology Act 2008 are met and whether it is in the child’s best interests for a parental order to be made. One of the criteria requires the court to be satisfied that the surrogate (and her spouse or civil partner) have freely, and with full understanding of what is involved, agreed unconditionally to the making of the parental order. The surrogate’s consent cannot be given until after six weeks following the child’s birth.

Over time, and owing to specific circumstances in some cases, the court has adopted a flexible approach towards some of the criteria, which has always been considered to be in the child’s best interests. However, the requirement that the surrogate consent to the making of the parental order remains strict and there has been no flexibility when considering this.