This is a guest post by Lottie Park-Morton, Senior Lecturer in Law at University of Gloucestershire, who is currently undertaking a PhD on surrogacy and children’s rights. Lottie tweets as @cparkmorton
The recent case of Re C (Surrogacy: Consent)  EWCA Civ 16 was an appeal centred on whether a surrogate could be said to have freely and unconditionally consented to a parental order in circumstances where there had been suggestions of coercion and pressure during the court proceedings. This appeal is significant in being one of only a handful of parental order cases to reach the Court of Appeal. As well as adding to the existing case law on the interpretation of the legislation, the case highlights the importance of ensuring proceedings are transparent, fair and appropriately handled where parties are unrepresented.
Parental order requirements
Surrogacy involves a woman, the surrogate, agreeing to carry and give birth to a child and the intended parents to become the social and legal parents of the child after birth. However, the law treats the woman who gives birth, the surrogate, as the child’s mother. In order for the intended parent(s) to become the legal parents, they must apply for a parental order under s54 or s54A of the Human Fertilisation and Embryology Act 2008. The effect of a parental order is to remove the surrogate’s legal parenthood and to recognise the intended parents as the legal parents.
There are numerous requirements that must be satisfied under the legislation for the court to grant a parental order. As discussed in a previous post, the courts have liberally interpreted many of these requirements, to meet the welfare of the child. For example, many parental orders have been granted despite the applications being made outside the six-month time frame stipulated in the legislation.
Some of the requirements, however, can be regarded as mandatory requirements which, if not satisfied, would prevent the court from being able to grant a parental order. Of particular significance in this recent case is the requirement for the surrogate to consent to the granting of the parental order. The legislation states the court must be satisfied that the surrogate (and any other person who is treated as a parent of a child, such as the surrogate’s husband) has ‘freely, and with full understanding of what is involved, agreed unconditionally to the making of the order’. The only circumstances in which a parental order could be granted without the consent of the surrogate would be if the surrogate could not be located or was incapable of consenting.
The consent requirement upholds the primacy given to motherhood and the legal understanding of a mother as being the person who carries and gives birth to a child. If consent is not present, the surrogate retains her status as a legal parent.
There are three clear aspects of this consent requirement that need to be met. First, the consent must have been given freely, in other words without coercion or pressure. Secondly, the consent must be fully informed, with the surrogate having complete understanding as to the effect of a parental order. Finally, the consent must be unconditional, meaning that the surrogate must not give consent dependent on any condition being satisfied.
Background to the appeal
C was born following a traditional surrogacy arrangement, which involved the surrogate’s own eggs being used with the intended father’s sperm. During the pregnancy, the relationship between the surrogate and the intended parents deteriorated. Although the surrogate allowed the intended parents to take care of the child from birth, she opposed the parental order application.
All parties agreed to mediation and when the application came before the magistrates, there was agreement between the parties for the intended parents to obtain a lives-with order under section 8 Children Act 1989, which would have confirmed the child’s residence with the intended parents and given parental responsibility to the intended mother. The magistrates, however, concerned about the surrogate’s consent, refused to grant the order and reallocated the case to Her Honour Judge Gordon-Saker.
At the hearing, which took place via CVP (Cloud Video Platform, an internet-based video meeting service), the judge made a parental order in favour of the intended parents, alongside a child arrangements orders for the surrogate to have monthly contact with the child.
However, the contact between the child and surrogate subsequently stopped and the intended parents issued an application seeking to discharge or vary the arrangements. During these proceedings, the surrogate informed the court that she intended to appeal the parental order. Theis J later approved the request to appeal out of time, and the case came before the Court of Appeal for consideration.
The original hearing
The Court of Appeal judgment includes parts of the transcript of the hearing that took place, a useful insight into how the judge addressed the surrogate in relation to the consent requirement.
When asked whether the surrogate wanted to say anything to the court about the consent requirement, she stated:
Thank you, your Honour, there is nothing I want to ask you but in terms of the condition, the unconditional consent, I think I would be lying if I said that I unconditionally consent to it because it is a– I would like to see C and so I am making the parental– the consent on that I see C. If I– I don’t unconditionally give it because I am fearful that I won’t have time to spend time with C and so that’s why I can’t quite unconditionally consent.
However, I do believe it is in all of our interests to move on with our lives and to kind of start rebuilding our relationship again and I do feel that having a child arrangements order is best for all of us along with a parental order being made, but I couldn’t lie and say that I do give my consent unconditionally. If that helps, your Honour.
This appears to be an express statement by the surrogate that her consent was not being given unconditionally, resulting from her desire for there to be contact arrangements put in place should she agree to the order.
In response, the judge undertook a lengthy explanation of the ‘limbo’ that the parties would be left in if the surrogate did not unconditionally consent to the parental order, adding that she was ‘not saying this in any way to put pressure’ on her. It can reasonably be perceived that such pressure would have been felt nonetheless.
Before asking again whether the surrogate would consent, the judge stated ‘I think all of us agree that a parental order is the right thing for him’. The surrogate responded to say that she would provide her unconditional consent, on the basis that she could not see any other way of moving forward.
Immediately after the parental order was confirmed, the judge went on to make a child arrangements order for contact. In the appeal, the surrogate’s legal counsel raised the fact that the surrogate was crying by the end of the hearing.
Upon appeal, there were two separate, but closely related, grounds: that the consent was not given unconditionally, and that the consent was not provided ‘freely’. The intended parents, as the respondents, argued that consent had been validly given, and if not, then the statute should be read in such a way as to allow the court to dispense with the requirement for consent. This second argument was rejected without discussion by the Court of Appeal, with the judgment focusing predominantly on the consent issue.
During the original hearing, consent has been given orally and via CVP, as opposed to the preferred form under the Civil Procedure Rules. Owing to this, Jackson LJ stated that a ‘sharp eye’ had to be adopted to ensure the court process itself did not exert pressure on the surrogate to consent.
By the judge probing into the surrogate’s feelings, a response was received at the point that she appeared willing to consent. Of this, Peter Jackson LJ stated:
the judge should certainly have paused at the point where the Appellant appeared willing to relent, so that her consent could be taken in writing in a non-pressured and witnessed setting. Instead, and motivated by an understandable desire to help the parties to achieve what the Appellant herself had described as the “best for all of us”, the judge immediately made the order. This was an attempt to square a circle that could not be squared in that way.
Of further relevance to whether the consent could be said to have been freely given was the fact that the surrogate was alone and unrepresented in the lower court. In such circumstances, the Court of Appeal held that there needed to be recognition of the potential deference that the surrogate may have felt in being addressed directly by the judge at length.
Overall, it was found that the consent was ‘not merely reluctant but neither free nor unconditional’. Although the surrogate may have used the term ‘unconditional’ when orally consenting during the hearing, this did not reflect the reality that she was giving consent on the understanding that a child arrangements order for contact would be granted. The consent was deemed to have been given under ‘unwitting but palpable pressure’.
In conclusion, the appeal was allowed and the application for a parental order was dismissed. The Court of Appeal felt it would not be appropriate to remit the case to the High Court for further consideration because the relationship between the parties had deteriorated further, leading to there being no reasonable prospect of any other outcome. As a result, the surrogate and the intended father, as the genetic father, will be the legal parents of C. The second respondent, the other intended parent, who obtained legal parenthood through the parental order has lost their parental status. The legal mechanisms to allow C to continue living with the intended parents, along with the question of contact with the surrogate, will need to be resolved in separate proceedings.
The value of s54 cases being appealed is that we gain an insight into where the ‘hard lines’ of the legislation are. This case strongly advocates that the requirement for consent is absolute, prioritising the right of the surrogate, as the legal mother, to retain her status. In contrast with adoption proceedings, where the birth mother’s consent can be dispensed with if the welfare of the child requires it, if the surrogate is identifiable and able to consent, the order will only be possible once such consent has been given.
The Law Commissions of England & Wales and Scotland have published their consultation paper, along with provisional proposals, in relation to the law on surrogacy, with the full report and draft bill anticipated later this year. One of the provisional proposals is to allow the court to dispense with the requirement for consent on the basis that the welfare of the child demands it. This would bring the consent requirement in line with other s54 requirements which can be interpreted liberally in order to allow a parental order to be granted on the basis of the child’s welfare. However, as Jackson LJ stated in the appeal, the current law still requires the court to be satisfied about consent and welfare: the two requirements are separate, and cannot be merged. In this sense, consent is a gateway requirement which, until established, will not allow a welfare assessment as to the merits of a parental order being granted.
There are two final points of interest from the judgment.
First, whilst the child’s guardian was involved in the original proceedings, she did not engage with the appeal case. As stated by the respondents’ counsel, this raises an issue as to the extent to which the welfare or interests of the child factored into the appeal. If a parental order is deemed as having a transformative effect for the child, the consequences of undoing one must be equally significant. In a judicial landscape where we are used to seeing the welfare or best interests of the child being given paramount consideration, the lack of consideration for the impact of the appeal on the child is notable – and striking.
Secondly, the transcripts from the judgment provide an important insight into how online proceedings and unrepresented parties may affect the fairness and due process of cases. Although the judge emphasised that no pressure was being put on the surrogate to consent, the language used and the circumstances of the hearing nonetheless led to pressure being felt. The fact that the surrogate was crying at the end of the hearing is mentioned only in passing in the judgment, but leaves a prevailing and lasting impression on how well the surrogate was – or was not – supported in the online environment.
Image: Royal Courts of Justice, with thanks to Simon Ross