The recently reported case of Re Z (Surrogacy: Step-parent Adoption) [2024] EWFC 20 highlighted the significant complexities that surround the law relating to surrogacy, in particular, the rights and responsibilities of surrogate mothers and of the intended parents and what can go wrong in any surrogacy arrangement. The court had to determine whether a step-parent adoption order should be made in favour of the intended parents which would sever all ties between the mother and her birth mother.
Surrogacy law
Currently, the UK law relating to surrogacy is defined in the Surrogacy Arrangements Act 1985. This provides for any surrogate to be the child’s legal mother, regardless of any agreements which have been made beforehand.
If the child is born in England or Wales, the surrogate is responsible for registering the birth and will be registered as the child’s mother. The surrogate’s spouse/civil partner, if there is one, will be registered as the father or second parent, unless they did not consent to the conception. If the surrogate is not married or in a civil partnership, one of the intended parents can be registered as the father or second parent, provided they attend the registration of the birth. If that intended parent is not the child’s biological father, they may need to produce the Human Fertilisation and Embryology Authority forms signed before conception to confirm that they were properly nominated to be the child’s legal parent.
Legal parenthood can be transferred to the intended parents by way of a parental order, which permanently reassigns the parenthood to the intended parent(s), extinguishes the responsibilities of the surrogate (and her spouse) and reissues the child’s birth certificate to the intended parents. At least one of the intended parents must be genetically related to the child for a parental order to succeed.
An adoption order can also be applied for which extinguishes the surrogate parent’s responsibilities and provides the intended parents with permanent parental status. Although a parental order is similar to adoption, the court can dispense with the consent of the birth parent if the welfare of the child requires it.
Although a surrogacy agreement can be entered into to outline the intentions and responsibilities of both parties, they are not legally enforceable in the UK. This means that the surrogate has the right to change her mind about giving up the child and being involved in the child’s life once the child is born. This undoubtedly creates difficulties, which were highlighted in the case of Re Z.
Re Z (Surrogacy: Step-parent Adoption) [2024] EWFC 20
The child, Z a boy was born following a surrogacy agreement entered into by X & Y (the intended parents), a same sex couple and G (the surrogate) in 2019. Z’s biological parents were G and Y; G’s egg was used following an unsuccessful donor egg embryo transfer. The intended parents were fully involved with the birth and attended the 12 and 16 week scans and included in the birth plan. All three jointly registered Z’s birth together.
The surrogate mother initially agreed to a parental order being made, but then changed her mind. She requested contact with the child, having previously told X & Y that she did not want to see him.
An order was made in August 2021 for a parental order and a child arrangements order for the child to live with the intended parents and for the surrogate mother to have contact every 6 weeks. Contact was suspended by the intended parents and they applied to amend the child arrangements order. The surrogate mother appealed the parental order being made on the basis that her consent was conditional on the contact arrangements. She appealed the suspension of direct contact. The appeal was successful and the parental order set aside. As a result, the child had no legal relationship with his non-biological father as the legal parenthood reverted back to the surrogate mother. He made an application for step-parent adoption in June 2023.
The surrogate mother’s position was that she did not want to provide a ‘parental’ role to her son, but she did want to have a relationship with him. She objected to an adoption order being made as she believed that if such order was made the intended parents would cut her out of the child’s life.
Interestingly, the Judge, Mrs Justice Theis, took into account the evidence of the expert, Dr Willemsen who recommended that the surrogate mother should have regular direct and indirect contact with her son which was not in the presence of the intended parents as this would help the child to understand his particular circumstances from an early age. The Guardian did not believe that this was best for the child and recommended that a step-parent adoption order was made in favour of the intended parents and a child arrangements order for the child to spend time with his mother twice a year in the presence of his intended parents and twice yearly through indirect contact.
The Judge agreed with Dr Willemsen, contrary to what the Guardian had recommended, and ordered direct contact four times a year, to include any birthday or Christmas contact.
No adoption order was made, the Judge stating that there was a risk that if the adoption order were made, the intended parents may fail to comply with the arrangements for contact. The Judge also found that making an adoption order would have no benefit to the child, whose day to day lived experience would be the same with or without an adoption order.
The Judge made a child arrangements ‘lives with’ order that the child would live with his intended parents. This meant that they acquired parental responsibility which was shared in a very limited way with the surrogate mother. The Judge recognised that a child arrangements order lacked the permanence of an adoption order but determined that the child arrangements order more accurately reflected the reality of the situation.
This case illustrates the difficulties that can be encountered if a surrogacy arrangement breaks down and has shown that surrogacy agreements need to be properly considered, prepared and understood with professional support being obtained before they are entered into to establish both the surrogates’ and intended parents’ role in the child’s life.
It is disastrous for all concerned if a surrogacy agreement breaks down because although the law relating to surrogacy is binding in this country, such arrangements are not enforceable in law.
So as to whether this case impacted on the law of surrogacy, in my view it has not as it was a rare case. That said, unless any intended parents and the surrogate are crystal clear of their rights and responsibilities to a child and to each other, issues and heartache like this may arise again in the future.
You can read my previous article ‘Surrogacy arrangements – important considerations’ – here.