Alex RKR & Anor v A & Anor [2024] EWFC 341 is a very sad case involving surrogacy. It was an application for a parental order by Mr and Mrs R, with respect to a 6 month old boy – in other words an order providing for the boy to be treated as their child. The surrogate mother, Ms A, suffered from respiratory arrest during the course of a caesarean section when giving birth. This left her with a hypoxic brain injury and cognitive impairment. Every other condition for the making of a parental order was satisfied, but Ms A was in consequence of her brain injury thought to be unable to give the consent of the surrogate normally required by the Human Fertilisation and Embryology Act 2008, s.54(6) of which provides that:
The court must be satisfied that both –
(a) the woman who carried the child, and
(b) any other person who is a parent of the child but is not one of the applicants (including any man who is the father by virtue of section 35 or 36 or any woman who is a parent by virtue of section 42 or 43)
have freely and with full understanding of what is involved, agreed unconditionally to the making of the order.
However, s.54(7) provides in material part that:
Subsection (6) does not require the agreement of a person who […] is incapable of giving agreement.
The question for the court, therefore, was whether Ms A was “incapable of giving agreement.” Judd J identified that counsel before her had been unable to find any case in which this had been addressed. Section 1 of the Adoption and Children Act 2002 also applies to the making of parental orders, so that the child’s welfare throughout their life is the court’s paramount consideration. Judd J noted that:
27. S52(1) of the ACA 2002 provides that:
“The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that –
(a) the parent or guardian cannot be found or lacks capacity (within the meaning of the Mental Capacity Act 2005) to give consent, or
(b) the welfare of the child requires the consent to be dispensed with.”
28. It can therefore be seen that the provisions of the HFEA and the ACA are different with respect to consent/agreement. Mr. Powell points out that the Mental Capacity Act was brought into force after the ACA, and that s52(1)(a) was amended to include reference to it. The HFEA came into force afterwards but no reference was included.
29. Although the two Acts clearly have similarities (and s1 of one is imported into the other), there is a clear difference when it comes to the issue of consent. There is no provision by which consent can be overridden under the HFEA on the basis of the child’s welfare. I am satisfied that the question as to whether the relevant person is incapable of giving agreement pursuant to s54(7) is a question of fact to be determined by the court, giving the words their ordinary meaning, and that the capacity concerned is wider than that defined in the Mental Capacity Act 2005. The court is likely to wish to 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. (emphasis added)
On the facts of the case, Judd J had little hesitation in concluding that Ms A was “incapable” of giving the relevant consent, and that the parental order should be made.
Comment
It is perhaps a little unfortunate that Judd J did not have drawn to her attention a straightforward reason why the HFEA 2008 talks of the person being incapable of giving consent, whereas the ACA 2002 talks of the person lacking capacity for purposes of the MCA 2005. The former applies across the United Kingdom (and, specifically, Scotland, where the test for capacity is different, and set out in the Adults with Incapacity Act (Scotland) 2000); it could not therefore simply refer to the MCA 2005 test. The ACA 2002 (for these purposes) only applies in England and Wales, and can therefore refer to the MCA 2005.
In this regard, it would perhaps have been helpful had Juud J drawn to her attention the recent joint report of the Law Commissions of England & Wales and Scotland on surrogacy. This provides (at 10.27) that:
There has not been a reported decision where the surrogate has been found unable to consent due to a lack of capacity. In England and Wales, the Mental Capacity Act 2005 sets out the conditions under which a person will be held to be lacking capacity for these purposes. In Scotland, in terms of the rules of court, the reporting officer is required to ascertain whether the person suffers or appears to suffer from a mental disorder within the meaning of section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003.
Even if, strictly, the MCA 2005 can only apply when the statute provides,[1] Occam’s Razor might be thought to apply so as to remove the need in England & Wales to consider whether ‘wider factors’ than those contained in the MCA 2005 should apply when considering capability to consent for purposes of the HFEA 2008.
The draft Bill put forward by the Law Commission proposed a continuation of the same terminology of “incapability” as contained in s.54 HFEA 2008. It may be that in light of this decision it would be prudent for any legislation ultimately brought forward to make clear that the term is to be construed by reference to the relevant legislation in the different jurisdictions (even if the Northern Irish legislation is not yet fully in force by then, there is still a statutory test which could be applied for these purpose). In the interim, and with respect, it is suggested that Judd J’s decision on the law is one that is open to doubt, albeit that there is no reason to consider that on the evidence before that her decision on the facts of the individual case was incorrect.
[1] See, in this regard, this discussion of the application of the MCA 2005 in the context of the retrospective assessment of testamentary capacity.
