Re C (Surrogacy: Consent)

This appeal concerned whether a parental order made under section 54 HFEA 2008 could stand where the surrogate's consent was given conditionally and in circumstances where the judge's conduct may have exerted pressure. The court held that section 54(6) requires consent to be "freely, and with full understanding of what is involved, agreed unconditionally" and that oral, last-minute statements made by an unrepresented surrogate in a remote hearing, after indicating conditional consent, did not amount to free and unconditional consent. The court rejected any judicial power to dispense with the surrogate's consent under section 54(6). As a result the parental order should not have been made and the application for a parental order was dismissed.

Background and facts:

• The intended parents applied for a parental order in respect of C, born following a surrogacy arrangement. A parental order was made on 11 August 2021 by Her Honour Judge Gordon-Saker. The Appellant, C's surrogate and biological mother, had earlier indicated opposition and said any consent would be conditional on making a child arrangements order giving her legal rights to contact.
• The Appellant appeared unrepresented at a short remote hearing (via CVP). During the hearing the judge engaged the Appellant in discussion, following which the Appellant said she would give unconditional consent and the judge made both a parental order and a child arrangements order.

Procedural posture:

• The Appellant was later granted permission to appeal out of time by Theis J on 14 July 2022 and the appeal was transferred to the Court of Appeal.

Nature of the claim and issues:

• The underlying application sought a parental order under section 54 HFEA 2008. The appeal raised two issues: (i) whether the surrogate's consent satisfied the statutory requirement that it be free and unconditional under section 54(6); and (ii) whether, if it did not, the court should nevertheless preserve the parental order on Article 8 or by reading the statute so as to confer a dispensing power.

Court's reasoning and decision:

• The Court of Appeal held that the statutory wording in section 54(6) must be taken at face value: consent must be free, informed and unconditional. The formal route for consent (Form A101A witnessed by the parental order reporter) shows the required degree of formality; absent that formality the court must be particularly cautious.
• The judge had correctly identified the legal test but, having heard the Appellant expressly say her consent was conditional, should have stopped the hearing, adjourned or required formal, written, witnessed consent taken in an unpressured setting. Instead the judge continued to explore and explain, and the Appellant ultimately said she would consent; the court found that that statement did not reflect free and unconditional consent but was given under unwitting pressure in a remote and unrepresented context.
• The court rejected the submission that it could read section 54 to provide a dispensing power or otherwise reinterpret subsection (6) to allow the parental order to stand despite lack of valid consent. The surrogate's right to withhold consent is a central protection in the statutory scheme and cannot be judicially displaced. The court also held that Article 8 did not require preservation of the parental order in these circumstances.
• Because the parties' relationships had deteriorated and the Appellant maintained that she would not consent to a parental order, remittal would perpetuate the same flawed process; the appeal was allowed and the parental order application was dismissed.

The appeal was allowed. The Court of Appeal held that section 54(6) HFEA 2008 requires freely given, informed and unconditional consent and that the surrogate's consent in this case was conditional and given under unwitting pressure in a short remote hearing with the Appellant unrepresented. The court declined to read a dispensing power into section 54(6) and concluded that Article 8 did not require the parental order to be preserved; the parental order should therefore be set aside and the parental order application dismissed.

Parental order originally made by Her Honour Judge Gordon-Saker at the Family Court at Peterborough on 11 August 2021. Permission to appeal out of time granted by Theis J on 14 July 2022; appeal transferred to the Court of Appeal under Rule 30.13 FPR 2010 and heard in the Court of Appeal, neutral citation [2023] EWCA Civ 16.