Re C (Surrogacy: Consent)

Lord Justice Peter Jackson:

Introduction

On 11 August 2021, a parental order was made in respect of C, a boy then under a year old, in favour of the Respondents to this appeal. The Appellant is his surrogate and biological mother. On 14 July 2022, she was granted permission to appeal out of time by Theis J, who transferred the hearing of the appeal to the Court of Appeal under Rule 30.13 of the Family Procedure Rules 2010.

The central issue raised by the appeal is a simple one, but it is of great importance to the adults and to C. The Appellant argues that the court did not have the power to make the parental order as she had not given the free and unconditional consent that is required by section 54(6) of the Human Fertilisation and Embryology Act 2008 (‘HFEA 2008’). In consequence, she submits that the order must be set aside. The Respondents contend that the necessary consent was given, but if that is not so, they argue that the parental order should nevertheless be left in place.

Background

The parties met in late 2018, when they were introduced to one another by the Appellant’s sister. After a time, the Appellant offered to act as a surrogate for the Respondents and in May 2019 a surrogacy agreement was signed. In May/June 2019, an unsuccessful IVF attempt was made using a donor egg and the Second Respondent’s sperm. In November 2019, artificial insemination took place using the Appellant’s egg and the Second Respondent’s sperm. The following month, the Appellant informed the Respondents that she was pregnant.

In Spring 2020, the relationship between the parties deteriorated. The Appellant describes becoming increasingly emotionally attached to the baby and feeling undervalued by the Respondents. The Respondents say that the Appellant kept them at arm’s length during the pregnancy and was unwilling to share information.

In September 2020, C was born and was handed over by the Appellant to the Respondents 7 hours after birth. Following the transfer, the Appellant described feeling a sense of loss and she received postnatal counselling at the Respondents’ expense.

On 27 November 2020, the Respondents applied for a parental order. On 4 January 2021, the Appellant returned the form of acknowledgement to the court saying that she did not consent to the making of the parental order and opposed the application. At the same time, she wrote to the Respondents explaining her position.

In January 2021, the Appellant received brief legal advice, paid for