Has the case of Re Z impacted the law on surrogacy?

The recently reported case of Re Z (Surrogacy: Step-parent Adoption) [2024] EWFC 20 concerned a baby boy born to a surrogate mother in an informal surrogacy agreement with a same sex couple (‘intended parents’). This case is a rare, but nonetheless significant, example of what can go wrong in any surrogacy arrangement. It is the first case before a court charged with determining 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.   

The Judge stated that this case has ‘difficult and challenging issues, both factually and legally’. She reminded all those involved in surrogacy arrangements that very careful consideration must always be given before entering into a surrogacy arrangement. The case also highlights the need for the intended parents to encourage a trusting and transparent relationship with the surrogate mother.

The background

The child was born following a surrogacy agreement between a same sex couple and a surrogate in 2019. An egg was used from the child’s biological parents. The intended parents were fully involved in the birth, attended the 12- and 16-week scans, and were included in the birth plan. The intended parents and the surrogate mother were present to register the child’s birth. 

The surrogate mother initially agreed to a parental order being made, but she then changed her mind and refused to consent to the parental order being made. She requested contact with the child having previously told the intended parents that she did not want to see him. 

An order was made in August 2021 for a parental order and child arrangements order for the child to live with the intended parents and for his mother to have contact with him every 6 weeks for a day. In January the following year, contact was suspended by the intended parents who applied to amend the child arrangements order. The surrogate mother appealed the parental order being made on the basis that her consent to it being made was conditional on her contact with her son. She successfully appealed the suspension of the parental order in favour of the intended parents. This was set aside and was granted in favour of the surrogate mother. The intended parents then applied for step-parent adoption.

The ruling

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 an 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 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 thought this was not in the child’s best interests. The Guardian recommended that a step-parent adoption order be 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, that direct contact twice a year and indirect contact at the same frequency was unlikely to meet the child’s identity needs. She ordered direct contact, four times a year, to include any birthday or Christmas contact, which should start initially for three hours and build up over the course of a year to one day between 10am and 5pm. The Judge said that the dates should be agreed for at least the next twelve months. She said that this struck the right welfare balance between meeting the child’s welfare needs to have a lived experience of his mother and would also maintain his relationship with her whilst not interfering too much in the day-to-day life of the intended parents and the child. The Judge ordered that there should be two periods of indirect contact, with the intended parents providing the mother with updates about the child in advance of her direct contact with her son.

The rationale

In her judgment, Mrs Justice Theis considered the statutory framework relating to step-parent adoption as set out in the Adoption and Children Act 2002 (ACA 2002), in particular, s51(2) ACA 2002, which provides for the making of an adoption order on the application of one person where the court is satisfied that ‘the person is the partner of a parent of the person to be adopted’. The Judge also considereds47, which specifies the conditions for making an adoption order. The Judge determined that although the surrogate mother had parental responsibility from the moment the child was born, and as she did not consent to the step-parent adoption order, her consent would need to be dispensed with pursuant to s52(1)(b) ACA 2002. 

The Judge was satisfied that it was the intention of the parties around the time of the surrogacy agreement being made, that the surrogate mother would have a continuing role in her son’s life, even though the detail was not discussed. The Judge also stated that as the child’s mother had had some direct contact with the child, her son would have retained knowledge about her.

The Judge in considering the merits of making an adoption order, stated that dismissing it would deprive the surrogate of her parental responsibility. She wanted to find an alternative route for the surrogate mother to retain her parental responsibility.

No adoption order was made on the basis that the criteria in s.52(1)(b) of the ACA 2002 were not met and there was no basis to dispense with the surrogate mother’s consent to the making of the order. The Judge stated that it was a difficult case and concluded 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 concluded 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. She found that other, less draconian orders would meet the child’s welfare needs.

A child arrangements ‘lives with’ order was then made setting out that the child would live with the intended parents as this reflected the current position and by making such an order ensured that the intended parents would acquire parental responsibility and, in a very limited way, the surrogate mother would retain hers. The child arrangements order therefore provided for the intended parents to exercise their joint parental responsibility for the child in every aspect of his life and for the surrogate mother to remain the child’s legal mother.

The Judge recognised that although the child arrangements order lacked the permanence of an adoption order, she considered that in the particular circumstances of this case (as observed by Dr Willemsen), an adoption order was unlikely to make much difference to the child and it would only introduce another complex dynamic for him to understand. The Judge determined that the child arrangements order more accurately reflected the reality of the child’s life.

Case analysis

This case illustrates the difficulties that can be encountered when a surrogacy arrangement breaks down and the problems that can arise if a surrogate’s identity is erased. This case also brings to the fore the complexities of human nature in preference to the legal process. Most importantly it shows that the parties to a surrogacy arrangement must take time to discuss issues from the start and continue to review them together as the pregnancy progresses and afterwards. It also highlights the fact that upset can arise when the parties do not properly consider and talk through the process.

The surrogacy arrangement in this case was informal, which was a factor that led to the complex issues that arose. A well-considered agreement will enable the role of the surrogate mother and the intended parents to be clearly established in advance of the surrogacy arrangement being entered into. This, together with expert legal advice in this complex area of law, which is fraught with pitfalls, would have equipped those concerned with the relevant knowledge and certainty before embarking on the process. The distress and upset which was so evident in this case could so easily have been avoided had advice and support been obtained from a professional before conception.

So, as to whether this case impacts the law of surrogacy, in my view, it has not as it is a rare case. That said, unless the intended parents and the surrogate are crystal clear about their rights and responsibilities in regard to the child and to each other, issues and heartache like this may arise again.

It is disastrous for all concerned if a surrogacy agreement breaks down because although the law relating to surrogacy is legally binding in this country, such arrangements are not enforceable in law. Perhaps the time has come to give peace of mind to those embarking on the surrogacy journey by making it legally binding in this jurisdiction. Should there be a cooling-off period for all the parties concerned once the child is born, because currently there is nothing in place if those involved in the process change their mind following the child’s birth?

If surrogacy arrangements were legally binding it would enable better support to be provided to each of the parties involved and would enable each of them to set out the role that they would like to play in the child’s life. With such changes to the law in place, hopefully the issues experienced in the case of Re Z would be less likely to arise in the future.