Mother today, stranger tomorrow?

In the United Kingdom, legal motherhood is allocated on the basis of gestation alone (Births and Deaths Registration Act 1953, s 2; Human Fertilisation and Embryology Act 2008 (‘HFEA’), s 33(1)). This results in an undesirable situation in surrogacy arrangements, with the surrogate automatically recognised as the child’s legal mother at birth. A Parental Order (PO) is a legal mechanism recognising ‘legal parentage around an already concluded lineage connection’ (AB v CT (Parental Order: Consent of Surrogate Mother) [2015] EWFC 12), extinguishing the surrogate’s legal motherhood and recognising the intended parents (IPs) as the child’s legal parents. Sections 54, 54A of the HFEA 2008 outline the criteria necessary for a PO to be granted, though recent case law reveals how almost all these requirements have lost their legal weight. In Re C (Surrogacy: Consent) [2023] EWCA Civ 16, the Court of Appeal underlined the importance of the surrogate’s consent to the PO, which must be freely obtained, with full understanding of what is involved, and unconditional, no earlier than six weeks post-birth (HFEA 2008, ss 54(6)-(7)).