Surrogate refuses to give consent for parental order

A surrogate has refused to give her consent for the parents of twins to become the children's legal parents, even though she and her husband are not seeking any active involvement in the children's upbringing.

The woman had acted as a surrogate for the married couple – who are the twins' biological parents – after they were introduced through a non-for-profit surrogacy organisation in the UK. After a short period getting to know each other, the surrogate was implanted with their embryos at a UK fertility clinic at the age of 51. The twins were born early in 2015 and spent some time in neonatal intensive care, but have since been raised by their biological parents and are described as 'thriving' in their care.

When the couple came to apply for a parental order, however, they met all the statutory requirements except one – consent from the surrogate, with whom the relationship had broken down. The surrogate explained that during the pregnancy the intended parents did not 'show sufficient concern' when doctors raised health concerns about the surrogate at the 12-week scan. After that point there was limited contact between the parties until the children's birth. The surrogate asked to stop receiving pictures of the children in early 2016.

Details of the case arose after Mrs Justice Theis in the Family Court adjourned the couple's application for a parental order needed to become the children's legal parents. Justice Theis explained that the surrogate, who cannot be named, had brought the application to a 'juddering halt' to the 'very great distress of the applicants'. She observed that the surrogate's refusal to give consent was due to her 'own feelings of injustice, rather than what is in the children's best interests'.

'The result [of the refusal] is that these children are left in a legal limbo, where, contrary to what was agreed by the parties at the time of the arrangement, the [surrogate and her husband] will remain their legal parents even though they are not biologically related to them and they expressly wish to play no part in the children's lives,' she said.
 
A parental order is needed to confer legal parenthood following surrogacy; it its absence the surrogate and her spouse are usually considered in law to be the child's parents. While the surrogate said she would not oppose an adoption order (which would also transfer parenthood to the intended parents), the court acknowledged that such an order would 'not reflect the reality [that] these children are the biological children of the applicants', Justice Theis said.

In the meantime, the children's parents have been given parental responsibility until the children are 18 years old to enable them to make decisions about healthcare, education and other important aspects of their upbringing. However, unless a parental order is granted, the surrogate and her husband will remain the children's legal parents for the duration of their lives. Justice Theis indicated that, even with an order denying the surrogate parental responsibility over the children, the question of who is recognised to be the legal parent remains an important aspect of their welfare.

'From the perspective of these children's lifelong emotional and psychological welfare, parental orders are the only orders that accurately and properly reflect the children's identity as surrogate-born children,' she said.

Justice Theis said that she hoped the surrogate will 'rediscover what led her to undertake such a selfless role and see the situation from the viewpoint of these young children'.

The parents sought an adjournment to give them some time to allow the surrogate to change her mind and also to wait for possible legal reform in this area, the judge said, noting that the Law Commission has already proposed to look into surrogacy (see also BioNews 831).