Re C (Surrogacy: Consent)

A parental order requires the surrogate’s consent to be free, informed and unconditional. Reluctance does not invalidate consent, but the court must assess its reality from all the circumstances. Informal oral consent, particularly from an unrepresented person at a remote hearing, calls for vigilance against pressure generated by the proceedings.

A parental order and a child arrangements order may coexist where both are genuinely agreed. Consent is not unconditional where one order is the price of the other. The surrogate’s right to withhold consent is a pillar of Human Fertilisation and Embryology Act 2008. Welfare considerations and Convention rights cannot confer a judicial power to dispense with it.

A surrogate and biological mother appealed against a parental order made by the Family Court in favour of the intended parents. Before the order, she had repeatedly said that she would consent only if a child arrangements order secured her contact with the child. At a short remote hearing, while unrepresented, she eventually stated that she gave unconditional consent after the judge explained that the parties could not otherwise move forward.

The intended parents maintained that valid consent had been given. Alternatively, they argued that the parental order should remain in force to protect the child’s Convention rights. The central questions were whether the consent satisfied section 54(6) of the Human Fertilisation and Embryology Act 2008, whether the Convention permitted consent to be dispensed with, and whether the parental-order application should be dismissed or remitted.

1. Appeal allowed and parental-order application dismissed. Peter Jackson LJ, with whom Thirlwall and King LJJ agreed, held that the surrogate had not given free and unconditional consent. The parental order should not have been made.

2. Section 54(6) of the Human Fertilisation and Embryology Act 2008 requires consent that is free, informed and unconditional. A person may consent reluctantly, but the court must evaluate the reality of the consent in all the circumstances. Written consent in the prescribed form, witnessed by the parental-order reporter, is preferable although not mandatory. Its absence requires particular vigilance, especially where consent is given orally by an unrepresented person at a remote hearing.

3. The surrogate had clearly stated that her consent depended on an order securing contact. The judge should then have adjourned or dismissed the application. At the least, when the surrogate appeared to relent, the judge should have allowed consent to be recorded later in a non-pressured and witnessed setting. The references to an obstacle, continuing limbo and the absence of another way forward created unwitting but palpable pressure. The subsequent statement of unconditional consent did not reflect the reality.

4. A parental order and a child arrangements order are not inherently incompatible. They may coexist where the parties genuinely agree that dual orders provide the solution. Section 54(6), however, unequivocally prevents their use where one order is the price of the other. The child’s welfare could not be mixed with the separate statutory question of consent.

5. The court rejected the argument that section 54(6) could be read as conferring a power to dispense with consent. The surrogate’s right to withhold consent is a pillar of the statutory scheme. Creating a dispensing power would exceed permissible interpretation under the Human Rights Act 1998. Although setting aside the order engaged Article 8, it did not violate the rights of the child or intended parents. States retain a considerable margin of appreciation, and adoption remained potentially available.

6. Remittal would merely perpetuate the process that produced the invalid order. The surrogate maintained that she would not consent, and the parties’ relationship had deteriorated. The appropriate legal arrangements for the child’s upbringing and contact lay outside the appeal.

1. Court of Appeal (Civil Division): In [2023] EWCA Civ 16, unanimously allowed the surrogate’s appeal, set aside the parental order and dismissed the underlying application.

2. Family Court at Peterborough: Her Honour Judge Gordon-Saker made a parental order and a child arrangements order on 11 August 2021. No neutral citation is stated.

3. High Court: Theis J granted permission to appeal out of time and transferred the appeal to the Court of Appeal. Permission concerning the separate suspension of contact was refused.