Are surrogacy agreements enforceable and what happens if a surrogate changes her mind?

While it is relatively unusual for a surrogate to change her mind and refuse to hand over a baby at birth, the parental order process to confer legal parentage upon the intended parents requires the surrogate to give her consent unconditionally to an order being made. As such a surrogacy agreement is NOT enforceable in law. An example of where a surrogate did not give unconditional consent came before the Court of Appeal in November 2022 in the case of Re C (Surrogacy: Consent) (Rev1) [2023] EWCA Civ 16 https://www.bailii.org/ew/cases/EWCA/Civ/2023/16.html This was an appeal against a parental order granted to surrogate parents (the Respondents) in respect of a child (C). The appellant is C's surrogate and biological mother. The central issue is whether the appellant gave the "free and unconditional consent" required by section 54(6) of the Human Fertilisation and Embryology Act 2008 (HFEA). 

Background

The parties met in 2018 and agreed to a surrogacy arrangement in 2019. The appellant became pregnant via artificial insemination using her egg and the second respondent's sperm. Their relationship deteriorated during pregnancy. After C's birth in September 2020, he was handed to the respondents. The appellant later opposed the parental order application, stating she wanted to maintain parental responsibility to have legal rights to see C. In June 2021, she stated she would consent only on condition of receiving contact rights through a child arrangements order.

The hearing

At the hearing on 11 August 2021, the appellant initially stated she could not "unconditionally consent" as she feared losing contact with C. After the judge explained this was an obstacle to making the order, the appellant said: "Then the only way forward is for me to give my unconditional consent." The judge made both a parental order and a child arrangements order providing for contact. The next day, the appellant emailed saying she had felt under pressure and had only provided conditional consent.

Legal framework

Section 54(6) HFEA requires the surrogate to have "freely, and with full understanding of what is involved, agreed unconditionally to the making of the order." Unlike adoption, there is no power to dispense with consent in surrogacy cases. A parental order is described as "transformative" and "even more far-reaching than an adoption order."

Court of Appeal decision

The Court unanimously allowed the appeal. Lord Justice Peter Jackson held that the appellant's consent was "not merely reluctant but neither free nor unconditional" as it was given in reliance on the promise of a contact order and under "unwitting but palpable pressure." The Court rejected the respondents' argument that the statute could be interpreted to include a dispensing power (this only arises if the surrogate cannot be found or lacks capacity to consent), describing the right of a surrogate not to provide consent as "a pillar of the legislation." The Court dismissed the application for a parental order rather than remitting it, as the appellant maintained her position of not consenting.

Outcome

The appeal was allowed and the parental order application dismissed. The Court noted that all parties agreed C would continue to be raised by the respondents, but the legal mechanism for this and the question of contact were beyond the scope of the appeal. Those issues were dealt with in a subsequent decision in January 2024 that is covered later in this blog.