Surrogacy

Lord Faulks Excerpts

Wednesday 14th December 2016 Lords Chamber

[Lord Faulks (Con)]

My Lords, I am extremely grateful to the noble Baroness, Lady Barker, for initiating this debate, and I endorse everything that she said. She referred to Baroness Warnock’s recent acceptance that the law needed change and to a report published in 2015 by a working group led by Surrogacy UK which concluded that existing legislation was,

“out of date and in dire need of reform”.

The report recommended a complete overhaul of the law, introducing pre-birth parental orders. It is on the question of parental orders that I wish to focus my remarks.

I do so on the basis of a particular case where judgment was handed down on 25 October of this year under the name “Re AB (Surrogacy: Consent) [2016] EWHC 2643 (Fam)”. The case arose out of a consensual, altruistic surrogacy arrangement. Embryos were created, using the genetic material of both biological parents, and twins were born in 2015. The embryos were transferred to the surrogate, who carried the twins to birth. The children have since had no contact with the surrogate mother and her husband, who have made it clear that they seek to have no involvement in the children’s lives.

It was agreed at a hearing involving all parties that the court should make a child arrangements order providing for the children to live with their biological parents. This gave them parental responsibility, and the orders made prevented the surrogate mother and her husband being able to exercise any parental responsibility in relation to the children. Except in one respect, the relevant criteria for the making of a parental order under Section 54 of the 2008 Act were met; that was in relation to the respondent’s consent. Section 54(6) provides that the court must be satisfied that the respondents have,

“freely, and with full understanding of what is involved, agreed unconditionally to the making of the order”.

Why did the surrogate mother and her husband refuse consent? Apparently, they did so because of a feeling of injustice about the process rather than being motivated in any way by the children’s best interests. Noble Lords may have seen the article by Alice Thomson today on page 28 of the Times, which goes into more detail about the facts of that case.

The lack of consent meant that the application for a parental order came to a juddering halt, which of course caused great distress to the biological parents. The children were then left—and are left—in a legal limbo which, contrary to what was agreed by the parties at the time of the arrangement, meant that the surrogate mother and her husband would remain the legal parents even though they were not biologically related to them and they expressly wished to play no part in the children’s lives.

The court acknowledged the “very unusual circumstances” of the case and said that it was prepared to accede to the request for the applications for a parental order to be adjourned generally, with liberty to restore. The problem is that a surrogate, as here, and her husband can refuse consent to orders of this sort for any reason or no reason at all. Effectively, the surrogate and her husband—who has no connection at all with the children—have a complete veto over the process. In this case, for nearly a year Cafcass and the court made extensive efforts to persuade the surrogate to “see sense”, put the interests of the children first and sign the papers, but those efforts came to nothing.

The law needs changing in this regard. The only circumstances in which a court can currently dispense with the consent of the surrogate and her husband is if they “cannot be found” or are “incapable of giving agreement”. I understand why those provisions were brought in: to cater for the situation where the surrogate might change her mind during the pregnancy, bond with the baby and want to keep it. In cases like the one that I have described, it is open to the biological parents to adopt their own children. Indeed, that may well prove to be the only option. It is something of an anomaly that, in adoption proceedings, the court would have the power to dispense with the consent of the surrogate and her husband and would be inclined to exercise that power if consent was not forthcoming.

If pre-birth parental orders are introduced, that will certainly assist, although it is understood that there will have to be some form of escape clause to deal with the problems of a surrogate changing her mind during the pregnancy. But where the issue arises post-birth, there will still need to be a satisfactory system to deal with parental orders. That could take the form of a welfare provision in relation to the child such as exists in adoption, which would make the welfare of the children paramount. Another possibility is that legislation could be amended to enable the court to dispense with the surrogate’s consent where consent was withheld unreasonably, or where the surrogate is not seeking to care for the child. Those two criteria are likely to overlap.

The situation is serious. The Law Commission is considering it. The Government should take notice of those concerns and take an early opportunity to legislate to deal with these serious lacunae.