What if the surrogate refuses to give us our baby?

4 October 2017

This is a question we are frequently asked and is a concern of many intended parents.

The recent case of Re AB (Surrogacy: Consent) [2016] EWHC 2643 (Fam) highlights the difficulties the courts are grappling with when dealing with these complex arrangements.

Following the birth of children conceived through a surrogacy arrangement, UK law automatically recognises the surrogate as the legal mother and her husband/civil partner as the other legal parent, if she has one.  At this stage, the intended parents, despite being biologically related to and caring for the children, have no legal status.  The remedy to this is for the intended parents to apply for a parental order which, once granted, will extinguish the surrogate's legal status and make the intended parents the legal parents with the issuing of a new birth certificate which names them as the parents.

In Re AB the Court found that all the criteria for a Parental Order had been met, save for the surrogate and her husband providing their consent which they were refusing to do.  The Judge stated that whilst it would be in the best interests of the children for the parental order to made, she was unable to make the order.  The result of this is that the surrogate and her husband remain the legal parents although have no connection or relationship with the children.  The children remain living with their biological parents, who in law, have no legal status and are not recognised as their legal parents.  The case has been adjourned pending either the surrogate changing her mind or a reform of the law.

In this particular case the intended parents entered into a surrogacy arrangement with a surrogate whom they met through a not-for-profit organisation.  After a period of 3 months of getting to know one another, they began treatment and the surrogate fell pregnant.  The relationship between the intended parents and the surrogate deteriorated after the 12 week scan.  At this scan the surrogate was advised that there may be complications to her health should the pregnancy continue.  The surrogate felt that the intended parents were unconcerned about her well-being and unsupportive of her.  The relationship remained difficult throughout the remainder of the pregnancy and for the birth at which the intended parents were not present.

Following the birth the intended parents assumed care for the children and they have remained with them since.  The intended parents sent photos and pictures of the children to the surrogate who after a period of time said that she did not want to receive them.

The intended parents issued their application for a parental order under s54 of the Human Fertilisation and Embryology Act 2008.  There are a number of criteria that intended parents need to meet in order for the court to grant the parental order.  One of these criteria is that the surrogate and her husband/partner consent to the making of a parental order.  In this case, whilst the intended parents have the care of their children the surrogate refused to provide her consent.  The reason for the refusal to consent was because the surrogate felt so aggrieved by the way the intended parents treated her during the pregnancy and she wanted to highlight to other intended parents the importance of treating your surrogate well.

The surrogate refusing to provide her consent, even though she does not wish to keep the children or have a relationship with them, caused difficulties for the Court.  Justice Theis commented that 'from the perspective of the children's lifelong emotional and psychological welfare, parental orders were the only orders that accurately and properly reflected the children's identity as surrogate born children' but that as consent had been withheld she was unable to make a Parental Order.  This leaves the children in legal limbo and being cared for by their parents, who are not recognised in law as their legal parents.

Whilst the surrogate indicated that she would agree to an adoption order being made, this did not reflect the reality of this set of circumstances as the children are the biological children of the intended parents.  These were exceptional circumstances - it was clearly in the children's' best interests for a parental order to be made, but the court was unable to do so.  Instead, at the request of the intended parents, the Court made the unusual decision to adjourn the application on the basis that the surrogate may change her mind and also that the law may be reformed given the indication by the Law Commission that surrogacy law is included in their next programme of law reform. 

Unfortunately this decision leaves the family living in legal limbo and awaiting either a change in the law itself or for the surrogate and her husband to consent.

The facts of this case are very sad and highlight the difficulties which can arise in these complex arrangements.  It remains to be seen whether a change in the law will go far enough to resolve this issue.  However, in the meantime and in any event, whilst you cannot plan for every eventuality, it is sensible for all intended parents and surrogates to ensure in advance of the treatment starting that everyone is clear as to how the arrangement will work,  what is expected of each of them and any special requests which should be taken into account.  The more that can be discussed and agreed upon the better informed the parties are and this will help them work together for the benefit of the children.  If you would like to discuss any issues raised in this article further or obtain advice as a surrogate or intended parents then please feel free to get in touch with Sarah Wood-Heath on 01722 427 619 or sarah.wood-heath@wilsonsllp.com.

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