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Surrogacy And Consent – When Things Go Wrong

Surrogacy is increasingly becoming recognised as a viable pathway to parenthood, but what exactly is a surrogacy arrangement and how does it work?

Surrogacy is when a woman carries and gives birth to a baby for another person or couple, with the intention that the child will be raised by the intended parent(s) shortly after birth. The surrogate either uses her own eggs and the intended father’s sperm (traditional surrogacy) or the eggs of one of the parents or a donor (gestational surrogacy).

The surrogate is always the child’s legal mother at birth. Intended parents should apply for a parental order once the child has been born and is in their care, and this transfers legal parentage from the surrogate (and her husband, if she’s married) to the intended parents. An important part of this process is for the surrogate (and husband) to consent to the making of the parental order, and if that consent is withheld, things become difficult for the intended parents.

The recent case of Re C (a child) (surrogacy: consent) is a stark reminder of the complex issues which can arise when the relationship between the surrogate and the intended parents breaks down.  

This case was a ‘traditional’ surrogacy arrangement, which means that the child was conceived using the surrogate’s egg and the intended father’s sperm. The relationship between the surrogate and the intended parents became strained during the pregnancy – the surrogate said she became emotionally attached to the baby and felt undervalued by the intended parents; the intended parents said that they felt that the surrogate had kept them at arm’s length during the pregnancy.

When the child was born, the surrogate was the legal mother. The child was given to the intended parents 7 hours after birth, and they subsequently applied for a parental order to transfer legal parentage.

The court made the parental order, but the surrogate appealed this, and said that she had given her consent under pressure, and it therefore wasn’t valid. For consent to be valid, the surrogate must give it ‘freely, and with full understanding of what is involved’ and must agree to the parental order unconditionally. The surrogate accepted that the intended parents would look after the child, but she still wanted to be able to have contact with the child, and therefore did not want the parental order to be in place.   

At the hearing, the appeal judges said that the surrogate had not given her consent freely or unconditionally, and that although at a previous hearing she had said she consented, this was ‘given under unwitting but palpable pressure’. It was therefore decided that the parental order should not have been made. This leaves all of the parties in a difficult position, with the legal parentage issue unresolved. This is a sad and difficult case for everyone involved.

Surrogacy law in England and Wales is in need of reform, as surrogates and intended parents are left in an uncertain legal position both during and after a pregnancy. Proposals for changes in the law are currently being considered as part of the Law Commission’s review, and so there is hope that in the future, the reformed legal processes will address the precariousness of the current position. 

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