What happens if a surrogate cannot consent to a parental order?

It is an essential requirement that a surrogate either consents to a parental order being made or that her consent is dispensed with either because she cannot be found or because she lacks capacity to give consent. The case of R & Anor v A & Anor [2024] EWFC 341 https://www.bailii.org/ew/cases/EWFC/HCJ/2024/341.html is a decision of the Family Court in November 2024 where a problem arose because the surrogate lost her capacity to litigate as a result of a brain injury during the child's birth. The Court had to decide whether to dispense with her consent due to her lack of capacity. In this case both applicants were the genetic parents of the baby but at birth the surrogate was the legal parent.

Case Details

This case concerns an application for a parental order by Mr. and Mrs. R regarding a six-month-old boy, O. The application was heard before The Honourable Mrs Justice Judd in the Family Court, with judgment delivered on 27th November 2024. The case involves Mr. and Mrs. R as applicants, with Ms. A (represented by the Official Solicitor) and O (represented by a children's guardian) as respondents.

Background

Mr. and Mrs. R turned to surrogacy after being advised that a second natural pregnancy could be risky for Mrs. R following complications during the birth of their first child. They met Ms. A online in May 2023, who had previously acted as a surrogate three times and she also had children of her own. The parties agreed to a surrogacy arrangement with Mr. R's sperm and Mrs. R's eggs, making them O's genetic parents. An embryo transfer took place in October 2023, with Mr. and Mrs. R agreeing to pay Ms. A £15,000 in expenses.

Birth Complications

During a caesarean section at 30 weeks of pregnancy, Ms. A suffered a cardiac arrest and an allergic reaction to the anaesthetic administered during the birth resulting in a hypoxic brain injury and cognitive impairment. O was born not breathing but stabilised quickly. Following the birth, O was made a ward of court and placed in the care of Mr. and Mrs. R, later formalised by an interim child arrangements order. O was discharged from hospital at about two weeks old and has thrived in their care.

Ms. A's Condition

Ms. A remained in a coma for two weeks after birth. Her brain injury caused seizures and behavioural changes, requiring assistance with basic tasks. Although her condition improved over time, medical evidence showed she remained cognitively impaired in multiple domains and unable to comprehend complex discussions. She was certified as lacking litigation capacity on 22 July 2024.

Legal Framework and Considerations

The application was governed by Section 54 of the Human Fertilisation and Embryology Act 2008, which requires various conditions to be met, including the surrogate's agreement unless she "cannot be found or is incapable of giving agreement." The court determined that Ms. A was currently incapable of giving her agreement as required under Section 54(7). The court also authorised the payments made to Ms. A as reasonable expenses.

Decision

Mrs Justice Judd granted the parental order, finding that all criteria under Section 54 were satisfied. The court considered O's welfare throughout his life to be paramount, noting he was thriving with Mr. and Mrs. R, who were his biological parents. The judge noted that Ms. A's partner indicated she would have agreed to the order if capable, reflecting her long-standing motivation to help others have children through surrogacy.