Vardags Family Law Essay competition 2024/25 | Shann Jalaly

Does the current law on surrogacy enable smooth ascription of parental status, if not, is reform needed?

Author: Shann Jalaly - University of Southampton

“What, after all, to any child, to any parent, never mind to future generations and indeed to society at large, can be more important, emotionally, psychologically, socially and legally, than the answer to the question: Who is my parent? Is this my child?” States Sir Munby in Re (A and others). (1) The importance of parental status cannot be disputed and becomes especially clear when looking at the issues raised by the Parental Order process in surrogacy law. While this quote does not come from a case relating to Parental Orders, it concerns surrogacy and validity of consent forms. (2) This essay will consider whether the current law on surrogacy, specifically the consent requirement and time limit, are fit for purpose, and if reform is needed.

Law on surrogacy

The Human Fertilisation and Embryology Act 2008 governs surrogacy alongside the Surrogacy Arrangements Act 1985 which bans commercial surrogacy. (3) At birth, the surrogate mother is the legal mother, (4) and if she has a male or female partner, they can be the second legal parent. (5) In international agreements, any paperwork the intended parents (IPs) have from the child’s birth country is irrelevant and they still require a Parental Order (hereinafter an Order). An Order transfers parental status to the IPs from the surrogate parent(s) and is governed by s.54 or s.54A for single applicants. (6) There is a checklist that the court considers when making an Order, and the requirements being discussed is that the application must be done within six months of the child’s birth, (7) and, the surrogate must consent “freely” and “unconditionally” to the making of the Order unless she cannot be located or lacks capacity. (8)

The child’s welfare is the court’s “paramount consideration” when considering an application, (9) so the suitability of the existing law must not be considered in a vacuum, but with awareness of this.

Consent requirement

The surrogate’s consent to the making of the Order is a pillar of surrogacy law in the UK. (10) In Re C (A Child) (Surrogacy: Consent), the surrogate provided conditional consent (she wanted a Child Arrangements Order so she could contact the child) and subsequently argued the court had no power to make an Order. (11) The Order was dismissed, therefore the IPs had no legal status over the child living with them, (12) showing difficulties caused by this requirement. (13) This child was born into a “legal vortex” because the withheld consent meant parental status was not ascribed despite him living with the IPs. (14) Lack of legal certainty was not in his best interest, (15) and it is clear that in this regard, the current law contradicted the intention of the agreement when it was formed through preventing the smooth ascription of parental status.

What is the real issue here? Is it the lack of enforceability and presence of the consent requirement, or is it the legal position of the IPs at birth? Madeleine Whelan suggests unenforceable surrogacy agreements are problematic because they prioritise the bodily autonomy of surrogates over the welfare of children. (16) Enforceable agreements would make ascribing parental status significantly smoother especially in these cases, but fail to appreciate that the surrogate is “not merely a cipher”, and, that she has “the most important role” in bringing the child into the world. (17) Surrogacy is a relationship, not a transaction. (18) Enforceability would undermine this. Furthermore, arguments about child welfare being outweighed by concern for the surrogate can be contradicted by the paramountcy principle and active consideration of the child’s welfare in this case. (19) Despite making ascription smoother, enforceable surrogacy agreements are unsuitable.

The Law Commission proposes another reform where “pre-conception regulation” gives the IPs parental status before birth. (20) This respects the surrogate’s autonomy because she can object after the birth, but instead of preventing ascription of parental status, she objects to the IPs’ existing legal status over the child, (21) providing greater legal certainty to all parties, most importantly the child. (22) Additionally, this reflects the intentions of the surrogate when making the agreement. (23) Interpersonal issues may arise between parties but they will have a clear family identity and legal status while fixing them. This enables smoother ascription of parental status without risking reducing surrogacy to a commercial transaction in which the surrogate is no more than a vessel.

The consent requirement does not allow for an entirely smooth ascription of parental status because of the legal position at the IPs at birth. Therefore, the solution is to change the legal status of IPs at birth rather than remove this requirement.

Six-month time limit

This requirement appears absolute because it says the applicant(s) “must” apply within six months, (24) but judicial interpretation contradicts this by taking a flexible approach to applications made outside of this timeframe.

X v Z (Adult Parental Order) involved an application for an Order over twenty years after the child’s birth because the IPs were unaware that they needed one to transfer parental status. (25) The “child” it related to said his sense of identity was “fully dependent” on the Order being made, (26) this perspective is especially valuable because children to whom these Orders relate may not always be old enough to articulate the importance of this relationship and their ascertainable wishes. Had the strict time limit been applied, the relationship and identity this family developed over two decades would be denied legal legitimacy and would remain in the same legal vortex as Re C (A Child) (Surrogacy: Consent), (27) and the result would be “entirely at odds with the intention and expectations of all parties”. (28) Strict interpretation would contradict the welfare principle by ignoring his wishes and particular needs”, (29) and Theis J admitted that this time limit must be read down to protect the identity rights of the child. (30) Another case of judicial creativity preventing an unfair result was Re X (A Child) (Parental Order: Time Limit), which concerned an Order for a child who was nearly three years old. (31) Sir Munby took a purposive approach and decided that a strict cut-off at six months would be “nonsensical” due to the “transcendental importance” of an Order. (32) Judicial creativity prevents major difficulties in the ascription of parental status which raises the question of whether the statute is fit for purpose.

Amel Alghrani and Danielle Griffiths would remove the “arbitrary” six-month time limit because the increased need to read down legislation to prevent an unfair result shows it is not fit for purpose. (33) Amanda Masson, in her case comment on Re X, Y, Z (a case concerning Orders for three children born through international surrogacy agreements who permanently relocated to the UK when the youngest was nearly two years old) agrees that it serves “no legitimate purpose”. (34)

This reflects the judicial attitude towards the time limit but removal is unlikely to enable smoother ascription of parental status because the time limit encourages IPs to apply for an Order quickly, (35) so without it, IPs risk postponing their application and leaving the child with uncertain legal status which does not prioritise their welfare. (36) While the time limit should not be applied in an absolute manner, the same difficulty in ascribing parental status risks arising if there is no urgency to apply.

The Law Commission proposes giving courts permission to make Orders outside the time limit where the child’s welfare requires it. The Draft Bill adds a sub-section stating that the application can be made after six months “with the permission of the court”. (37) This does not change the current law, it simply puts it on a statutory footing. The requirement that the time limit is only extended when the child’s welfare needs it is identical to the existing welfare principle as shown in the cases discussed. Additionally, it is almost always in the best interests of the child to make an Order where the child already lives with their IPs, (38) so their proposal simply reflects the current law. The current law does not prevent smooth ascription of parental status due to the scope for judicial creativity, and the solutions considered would not ascribe parental status much smoother.

These aspects of the checklist show that while ascription of parental status is not always smooth, any reform must respect the autonomy of the surrogate and prioritise the welfare of the child. Challenges in ascribing parental status posed by the consent requirement can be fixed by giving IPs parental status at birth, and judicial flexibility towards the time limit enables adequate ascription of parental status with due concern for the child’s welfare.

Footnotes

(1) [2015] EWHC 2602 [3].

(2) Re (A and others) [2015] EWHC 2602.

(3) s.2.

(4) Human Fertilisation and Embryology Act 2008 (HFEA 2008), s.33(1); Ampthill Peerage Case [1977] AC 547.

(5) HFEA 2008, s.35; s.36; Banbury Peerage Case (1811) 1 Sim & St 153; HFEA 2008, s.42; s.43.

(6) HFEA 2008.

(7) HFEA 2008, s.54(3); s.54A(2).

(8) HFEA 2008, s.54(6); s.54(7); s.54A(5); s.54A(6).

(9) Adoption and Children Act 2002 (ACA 2002), s.1(1); s.1(2).

(10) Re C (Surrogacy: Consent) [2023] EWCA Civ 16 [61].

(11) [2023] EWCA Civ 16 [2], [10], [11].

(12) Re C (a child) (surrogacy: consent) [2023] EWCA Civ 16 [63]

(13) HFEA 2008; s.54(6); s.54(7); s.54A(5); s.54A(6).

(14) Madeleine Whelan, ‘The bite of unconditionality: Re C (Surrogacy: Consent) (Rev1) [2023] EWCA Civ 16’ [2023] Family Law 480, 482.

(15) Law Commission and Scottish Law Commission, Building families through surrogacy: a new law, (Law Com No 411, 2023), paras 2.5, 2.8.

(16) Whelan (n 14) 480.

(17) Re D & L (Minors) (Surrogacy) [2012] EWHC 2631 [24].

(18) UK Working Group on Surrogacy and Reform, ‘Surrogacy in the UK: Mythbusting and Reform’ (2015) 34 accessed 6 January 2025 < https://www.familylaw.co.uk/docs/pdf-files/Surrogacy_in_the_UK_report.pdf >.

(19) Whelan (n 14); Re C (a child) (surrogacy: consent) [2023] EWCA Civ 16 [58].

(20) Law Commission and Scottish Law Commission (n 15) para 2.16; UK Working Group on Surrogacy and Reform (n 18) 38.

(21) Law Commission and Scottish Law Commission (n 15) para 4.118.

(22) Amel Alghrani and Danielle Griffiths, ‘The regulation of Surrogacy in the United Kingdom: the case for reform’ [2017] Child and Family Law Quarterly 165, 175.

(23) Law Commission and Scottish Law Commission (n 15) para 4.119.

(24) HFEA 2008, s.54(3); s.54A(2).

(25) [2022] EWFC 26.

(26) X v Z (Parental Order Adult) [2022] EWFC 26 [45].

(27) [2023] EWCA Civ 16; Whelan (n 14) 482.

(28) X v Z (Parental Order Adult) [2022] EWFC 26 [44].

(29) ACA 2002, s.1(4)(a); s.1(4)(b).

(30) X v Z (Parental Order Adult) [2022] EWFC 26 [56].

(31) [2014] EWHC 3135 (Fam).

(32) Re X (A Child) (Parental Order: Time Limit) [2014] EWHC 3135 (Fam) [55].

(33) Alghrani and Griffiths (n 22) 172, 178.

(34) [2022] EWHC 198 (Fam); Amanda Masson, ‘Granting of a parental order beyond six month time limit X, Y and Z Re (Children) (Parental Orders: Time Limit) (2022) EWHC 198 (Fam)’ [2022] Family Law Bulletin, 176, 178.

(35) Law Commission and Scottish Law Commission (n 15) para 10.104.

(36) Law Commission and Scottish Law Commission (n 15) paras 2.5, 2.8.

(37) Surrogacy Draft Bill (Law Commission) 2023, s.16(3); s.18(4); s.21(4).

(38) Law Commission and Scottish Law Commission (n 15) para 2.5.

Case Table

A and Others, Re (Legal Parenthood: Written Consents) [2015] EWHC 2602

Ampthill Peerage Case [1977] AC 547

Banbury Peerage Case (1811) 1 Sim & St 153

C, Re (A Child) (Surrogacy: Written Consent) [2023] EWCA Civ 16

D & L, Re (Minors) (Surrogacy) [2012] EWHC 2631

J v G (Parental Orders) [2013] EWHC 1432 (Fam)

X v G [2024] EWFC 20

X, Re (A Child) (Parental Order: Time Limit) [2014] EWHC 3135 (Fam)

X v Z (Parental Order: Adult) [2022] EWFC 26

X, Y and Z, Re (Children) (Parental Orders: Time Limit) [2022] EWHC 198

Legislation Table

Adoption and Children Act 2002

Human Fertilisation and Embryology Act 2008

Surrogacy Arrangements Act 1985

Bibliography

Alghrani A and Griffiths D, ‘The regulation of Surrogacy in the United Kingdom: the case for reform’ [2017] Child and Family Law Quarterly 165

Law Commission and Scottish Law Commission, Building families through surrogacy: a new law, (Law Com No 411, 2023)

Masson, A ‘Granting of a parental order beyond six month time limit X, Y and Z Re (Children) (Parental Orders: Time Limit) (2022) EWHC 198 (Fam)’ [2022] Family Law Bulletin, 176

Surrogacy Draft Bill (Law Commission) 2023

UK Working Group on Surrogacy and Reform, ‘Surrogacy in the UK: Mythbusting and Reform’ (2015) < https://www.familylaw.co.uk/docs/pdf-files/Surrogacy_in_the_UK_report.pdf >

Whelan M, ‘The bite of unconditionality: Re C (Surrogacy: Consent) (Rev1) [2023] EWCA Civ 16’ [2023] Family Law 480