Janet Bazley KC, Olivia Magennis and Melissa Elsworth, instructed by Jemma Dally and Marie Campbell of Goodman Ray, Solicitors, appeared on behalf of the successful Appellant in Re C (Surrogacy: Consent) [2023] EWCA Civ 16, an important decision which considered, for the first time, the consent requirements of s54(6) of the Human Fertilisation and Embryology Act 2008. The Court of Appeal provided essential guidance on section 54(6) of the Human Fertilisation and Embryology Act 2008, i.e. the requirement that the surrogate mother freely, and with full understanding of what is involved, agrees unconditionally to the making of a Parental Order.

The Court concluded that this requirement had not been satisfied, for a number of reasons, including:

• The way in which the hearing had been conducted (the Appellant being unrepresented, the hearing being remote rather than in-person, the Appellant being addressed by the judge at length, her consent being presented by the judge as an obstacle to be overcome, and the judge not stepping back to consider why the Appellant may have seemingly changed her mind after being addressed by the judge when she had previously consistently stated that she did not consent);
• The Appellant’s consent to a Parental Order was conditional upon the making of a Child Arrangements Order, and being able to spend time with the child (the Court being clear that the HFEA 2008 does not permit “circumstances where one order is the price for the other”).

The Court of Appeal also declined to read wording into section 54(6) which would allow the Court to dispense with a surrogate’s consent and determined that ECHR rights do not require a Parental Order, which was made without valid consent, to be left in place. The Court of Appeal was clear that the ECHR rights of the Respondents and the child were not violated by setting aside the Parental Order.

The Court of Appeal set aside the Parental Order and dismissed the Respondents’ application for a Parental Order.