Re.C (surrogacy: consent)  EWCA Civ 16
AParental Order reassigns legal parenthood and parental responsibility from a surrogate mother (and her husband, if married) to a child’s intended parents and extinguishes the legal status of the surrogate parents for the child.
Parental Orders can be appealed in exceptional circumstances. This article looks at a case of Re.C (surrogacy: consent)  EWCA Civ 16where the biological mother successfully appealed against a Parental Order for her son being granted in favour of the intended parents in a surrogacy agreement.
After signing a surrogacy agreement and the handing over of the baby boy to the intended parents, the biological mother felt lonely and joined postnatal counselling.
The intended parents applied for a Parental Order which was refused by the biological mother as she wanted to keep her legal rights to spend time with the baby. She stated she would only consent to a Parental Order on the condition that a Child Arrangements Order (CAO) was put into place for monthly contact.
The Parental Order and CAO was ordered following a hearing when the biological mother gave oral consent to the parental order because she didn’t see any other way for the parties to move forward without it.
However, the following day, the biological mother contacted the parents stating that she felt pressured to consent to the Parental Order at court. The case went to the Court of Appeal which ruled in favour of the biological mother.
It held that the court had to be satisfied that the woman who carried the child had “freely, and with full understanding of what is involved, agreed unconditionally to the making of the order”. Where consent was in doubt, it would be a matter for the court to judge, considering all the circumstances. The means by which consent had been expressed was likely to be a relevant factor.
The Family Procedure Rules 2010 requires consent to be in writing, using Form 101A and with the parental order reporter as witness. Even then, consent could be withdrawn at any stage before the order was made. In this case, the disputed consent had been given orally in the face of the court.
The judge had correctly identified the statutory test and was aware of the importance of consent being freely given and in writing. However, when the biological mother stated her position at court, the judge should have held that it was inappropriate to pursue the matter further, at least during that hearing. The biological mother was under pressure. In those circumstances, the parental order should not have been made.