The Role of Consent in Surrogacy

Consent plays a vital role in many aspects of the law in England & Wales, including sexual activity, medical treatment, and adoption. Consent is also a key element in surrogacy.

Surrogacy is legal in the UK, though surrogacy agreements are not legally enforceable. At birth, the surrogate is the legal parent, along with her spouse or civil partner, or the father named on the birth certificate. Following the birth, a Parental Order is made to transfer legal parenthood from the surrogate to the intended parents.

In the recent Court of Appeal case of Re C (Surrogacy: Consent)[1], the Appellant surrogate was the biological mother and the Second Respondent the biological father. The First Respondent along with the Second Respondent were the intended parents.

Several conditions must be met for the Court to grant a Parental Order, including that the surrogate, and any other parent of the child, have freely, and with a full understanding of what is involved, agreed unconditionally to the making of the order.[2] That means that, regardless of any surrogacy agreement in place, if the surrogate does not consent to the Parental Order, it cannot be made, and the surrogate maintains legal parenthood of the child.

In Re C, the Appellant sought to set aside a Parental Order made in favour of the Respondents on the basis that her consent was not free and unconditional; the Respondents contended that the necessary consent was given, but that even if it had not been, the Parental Order should still be left in place.

This appeal hung on whether the Appellant’s consent to the making of the Parental Order was free, informed and unconditional.

In order for consent to be free, it must be devoid of pressure or coercion. For example, in a criminal context, submission of a homeless child to sexual intercourse in exchange for money to buy food was deemed to be submission, not free consent[3]. In Re C, Counsel for the surrogate submitted that the judge had ‘unintentionally placed pressure’ upon the surrogate, and the Court identified ‘unwitting but palpable pressure’.

The consent must also be informed, meaning the individual must fully understand the nature of the decision before them, know all the options they have and the potential consequences of each, and have capacity to use that information to make their decision. This was not an issue in Re C, as whilst the surrogate was not legally represented at the time the Parental Order was made, the Respondents had paid for her to receive independent legal advice.

Finally, the consent must be unconditional, which means exactly what it says. The consent must not be given on some other condition, such as a financial reward or supplementary arrangement. This seemed to be the resounding issue in Re C, with the transcript included in the judgment clearly showing the surrogate’s statement of “I would be lying if I said that I unconditionally consent” and that she was giving her consent on the basis that a Child Arrangements Order (‘CAO’) for contact would also be made. Even though the surrogate did eventually express consent, this was after palpable pressure on her by the judge and on the understanding that a CAO would be made. This is clearly not unconditional.

Ultimately, the appeal in Re C was granted and the Parental Order dismissed on the basis that the surrogate’s consent was not free and unconditional, and that the Court did not have the power to dispense with the need for consent for welfare reasons, unlike in adoption proceedings. This confirms that the right of the surrogate not to provide consent is a pillar of surrogacy legislation.

Please see judgment https://www.bailii.org/ew/cases/EWCA/Civ/2023/16.html.

Author

Clemmie Bridges
Paralegal