A biological mother has successfully appealed against a parental order for her son being granted in favour of the intended parents in a surrogacy arrangement.

The parties had signed a surrogacy agreement. The baby boy was handed over to the intended parents after his birth.

The biological mother, referred to as S, then described feeling a sense of loss. She received postnatal counselling. Subsequently, the parents applied for a parental order.

S refused to consent; she wanted to keep her parental responsibility and to have legal rights to spend time with the baby. She later stated that she would consent to a parental order if a child arrangements order (CAO) was made providing for monthly contact.

Following a remote hearing, the parental order and a CAO were made. At that hearing, S gave oral consent to the parental order because “I don’t see that there’s any other way for us to move forward without it”.

On the following day, S emailed the parents, stating that she had felt pressured to consent to the parental order and had only provided conditional consent.

Months after the CAO was made, contact stopped taking place. The parents applied to discharge or vary the terms of the child arrangements order.

The case went to the Court of Appeal, which ruled in favour of S.

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.

Due to the profound consequences of the underlying choice, a degree of formality was normal. That was reflected in the Family Procedure Rules 2010, which required that consent 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Even then, consent could be withdrawn at any stage before the order was made.

That degree of formality was not mandatory, but its absence should put the court on its guard to ensure that the proffered consent was valid. Here, the disputed consent had been given orally in the face of the court and via the cloud video platform.

The judge had correctly identified the statutory test and was alive to the importance of consent being freely given. However, by the time S had stated her position, in the same terms as had appeared in her statement and in the parental order report, the judge should have held to the line that it was inappropriate to pursue the matter further, at least during that hearing.

Instead, motivated by an understandable desire to help the parties to achieve what S herself had described as the “best for all of us”, the judge immediately made the order. That was an attempt to square a circle that could not be squared in that way.

The eventual consent was given at a remote hearing, without S having legal representation and with her position on consent being represented as the only obstacle to a solution.

She was under unwitting but palpable pressure. In those circumstances, the parental order should not have been made.

Case citations: C (Surrogacy: Consent), Re Court of Appeal (Civil Division) [2023] EWCA Civ 16

King LJ Thirlwall LJ Peter Jackson LJ

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