Consent: When does a surrogate lack capacity to give it?

While the court has previously dealt with cases where surrogates have absconded or sadly died, in this case the surrogate experienced serious complications during birth, tragically suffering an allergic reaction to the anaesthetic she was given for the caesarean section resulting in hypoxic brain injury and cognitive impairment. How does a court assess the capacity of an individual in this event and what lessons can be learnt about how intended parents should approach the problem?

A had been a surrogate three times before but, during the pregnancy, A experienced complications, including bleeding, and at 30 weeks, she suffered another serious bleed, requiring immediate medical intervention. O was born around May 2024 but had to be placed in the neonatal intensive care unit (NICU) as he wasn’t breathing initially. A, however, went into cardiac arrest and remained in critical condition for several days. The applicants, Mr. and Mrs. R rightly applied for a parental order for their child, O, who is just over six months old.

A remained in a coma for two weeks after birth and later suffered from cognitive impairments due to her brain injury. By July of that year, she had made some progress, but she still required assistance with tasks and had significant cognitive and memory issues. By November, she was stable but continued to struggle with complex discussions and cognitive tasks. A was certified as lacking litigation capacity in July 2024 and is represented by the Official Solicitor.

The court was directed to the relevant legal framework at s.54(6), as the surrogate must “have freely and with full understanding of what is involved, agreed unconditionally to the making of the order” but that consent is not required if that person “is incapable of giving agreement” (s.54(7)). It is clear to most observers that that the surrogate was potentially in this category.

Consent to the parental order remains a fundamental tenant of English law in this area. This case reminds us of the wise words from Mr Justice Baker in Re D and L (Surrogacy) [2012], “The reasons for this provision are obvious. A surrogate mother is not merely a cipher.” It is, however, also sometimes criticised as being the only area of family law that allows the best interests of a child to come second to that of a legal parent, the surrogate. This case is markedly different as A could not give the consent even if she wanted.

Everyone agreed that the parental order should be granted, but the court must still grapple with the realities of the statute. There is no provision allowing consent to be overridden on the basis of the child’s welfare, but giving the ordinary meaning to the words of s.54(7) the judge rightly directed herself to accept that an assessment of fact will need to be made for each case where the court will, “consider the person’s ability to understand the information relevant to the decision, to retain it, to use and weigh it, and to communicate it, but may take into account other issues too.”

The court had evidence from A’s partner, suggesting that she would have agreed to the parental order had she been able to do so. While not determinative in its own right, taken in the context of the surrogacy arrangement the evidence was clear to the judge that A had long been motivated to help others form a family and so generously carry a baby for those who cannot.

The judge managed to navigate through the issues of consent and dispense with the matter without further cost and expense to the parties. In another case where the lack of capacity may appear more temporary, it can be expected that parties will be made to wait or gather far more detailed evidence. However, for this case it was clearly a pragmatic and proportionate example of the family courts dealing with sensitive matters expediently. The outcome cannot be faulted.

Our Modern Families team have leading experts, best known for their work in legal parenthood and surrogacy. Lead by Andrew Spearman, a specialist senior practitioner in surrogacy law, the team advise on complex surrogacy matters and complex cross-border family planning.

You can arrange a consultation with them and explore these issues and ensure full understanding of the law as you look to build a family, whether in the UK or abroad.

Get in touch with our Modern Families team on 020 7228 0017 to arrange your consultation now.