A surrogate’s right to be involved in the child’s life? Where does Re Z (Surrogacy: Step-parent Adoption) leave us?

The case of Re Z is a detailed examination of the complexities of the sensitive area of surrogacy law and the difficulty in determining an appropriate legal framework to protect the individuals involved including, most importantly, the child that is born from the process.

The focus at the outset of the surrogacy process is often, understandably, the need to ensure that the intended parents are able to formalise their legal parentage. In England and Wales, the surrogate is the legal mother of the child, and it is only once the Court grants a “parental order” that the parentage (and the rights and responsibilities which come with it) changes to the intended parents in the surrogacy process.

A parental order is far reaching in scope; it severs the legal links of the child to other parents, such as the surrogate mother. It is therefore unsurprising that one of the fundamental requirements for such an order is that surrogate must have freely and unconditionally agreed to the making of the order. Such consent cannot be validly provided less than 6 weeks after the child is born.

This “consent gap” is widely recognised as a major source of anxiety for all participants in the surrogacy process and is often the focus of debate for reform in this area (the Law Commission, in 2023, has recommended that the legal presumption of parentage at birth should shift from the intended parents to the surrogate, with safeguards in place). If enacted, this change would only address the matter of legal parentage i.e. who is the legal parent of the child. Re Z (Surrogacy: Step-parent Adoption) has, however, cast doubt on whether this would go far enough.

The case demonstrates that intended parents need to not only consider legal parentage but also the level of contact the child might or should have with the surrogate mother throughout their childhood. In the case, the surrogate felt unable to consent to the parental order being made in favour of the intended parents because there was a disagreement as to the level of contact she would have with the child. After various applications and hearings, the parental order was set aside and the mother remained the child’s legal parent.

In the first case of its kind, the court had to consider whether a stepparent adoption order should be made in favour of one of the non-biological intended parents, extinguishing the ties between the child and the surrogate, given the parental order could not be made

The judge commented on the ‘difficult and challenging issues, both factually and legally’ of the case. The stepparent adoption order was not granted meaning that the surrogate retained legal parentage and parental responsibility for the child. The judge ordered that the child would continue to live with the intended parents under a ‘lives with’ order (as agreed by the surrogate), with a free-standing order for the non-biological parent to have parental responsibility. She also made a ‘spends time with’ order in the surrogate mother’s favour, and a series of Specific Issue Orders and Prohibited Steps Orders in order to regulate the three adults’ exercise of parental responsibility.

The judgment contains a detailed examination of the psychological difficulties that influenced the actions of the parties in addition to the importance of the surrogate mother in the formation of the child’s identity. There should be specific consideration of the role that the surrogate will play in the life of the child; not necessarily as a parent in a day-to-day sense but as being unavoidably a part of the child’s identity.

The cases emphasises that human considerations – rather than the legal process – are fundamental in matters such as these. The judgment highlights the fundamental importance of commencing the process with a thorough understanding of what it entails; it is not enough for there to be an initial discussion between the surrogate and the intended parents at the outset; the agreement and expectations need to be revisited openly and honestly throughout the pregnancy and at/after the birth.

Ultimately, the case highlights that the psychological conflict which can exist between intended parents and the surrogate should not be underestimated, albeit that such friction will fundamentally be considered secondary to the best interests of the child.

This article was first published by Today’s Family Lawyer in October 2024.