Global Surrogacy Round-Up, I

Okay, time to play serious catch-up.   I think this may take more than one entry, which is why I’ve included the “I” in the title here.  

I’ve written in the past about the globalization of surrogacy.    It’s really just a more specialized form of medical tourism. But it brings its own very special complications, largely because variations in law regarding parentage.    There have been a few stories in the news recently that really drive that point home. 

Consider this story, for instance.   The UK has its own rules regarding surrogacy.  (I’ve written about this, too, in the past.)   Surrogacy is legal but you are not allowed to pay the surrogate fees (as distinguished from expenses.)   Not surprisingly, this means there are fewer surrogates available in the UK.    Thus, it has become somewhat common for people to use a surrogate in another country–one where the surrogate can be paid.   India is a popular destination, and though far more expensive so, it seems, is the US.   The article I’ve linked to warns of a potential problem.   The people using surrogacy obviously want to be parents to the children that are produced.   They want their status as parents recognized in law.   But it is possible that UK courts, mindful of the UK policy that surrogacy is not to be a commercial enterprise, will refuse to give legal parental rights to those participating in commercial surrogacy. 

The article quotes a number of attorneys who think it’s quite possible.   UK courts might choose to uphold UK public policy and refuse to condone paying fees–often substantial fees-to surrogates.    Thus, a judge might refuse to enter an parental order.  And this, according to Natalie Gamble, a lawyer who has handled several of the overseas surrogacy cases, might lead to what is to me a somewhat surprisingly result: 

“If you don’t get a parental order the English couple aren’t seen as the child’s legal parents and you are committing an offence if you are caring for a child that’s not yours. You have to tell social services if you’re doing that.”

(I didn’t realize that caring for a child that isn’t yours could be an offense.)   There’s at least one couple described in the article who have legal parentage recognized under California law (which is quite supportive of commercial surrogacy) but have not applied for legal recognition in the UK.  

What this all adds up to is uncertainty.   A person or a couple could go to great lengths and very substantial expense to arrange a surrogacy in India or California.   On top of all the ordinary risks and unpredictability involved in every pregnancy, they’d face an additional layer of legal uncertainty about their eventual legal recognition in the UK.  

More than anything, it seems to me that the legal uncertainty is both unnecessary and undesirable.  I cannot tell that the UK courts have ever denied a parental order, even where it appears that a surrogate abroad has been paid a substantial fee, but the fact that they might casts a shadow over many people.   “Maybe” is surely the worst of all possible answers.

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12 responses to “Global Surrogacy Round-Up, I

  1. All international surrogacies must include meeting an experienced reproductive attorney in their home country.

    There are certain subtleties in the contracting phase and birth certificate phase which may or may not have legal significance in the Country where the contracts were executed. Nonetheless, these subtleties provide Intended Parents a much easier path for the child to exit the Country of birth and then be recognized as a citizen in their home Country as well as support legal confirmation of the parent-child relationship.

    I am not aware of a malpractice lawsuit addressing these issues but suspect that the standard of care in an international surrogacy includes providing the prospective parent full disclosure on the problems associated with bringing the child home.

    • Reliable legal advice–both at home and abroad–seems like a must. But I’m afraid it isn’t always clear to people when they have (and perhaps most importantly, when they have not) obtained reliable legal advice.

      It’s not uncommon for lawyers to also serve as brokers. This can give them an interest in moving the transaction forward, which can lead them to give overly optimistic opinions. I don’t mean to suggest that lawyers generally do this. I think quite highly of the lawyers I know who work in this field and I think they are quite vigilant about potential conflicts of interests. But for the average consumer–particularly the consumer who is on another continent–it may be hard to tell if you’ve got one of those responsible lawyers or not. Further, where the law is uncertain (as it seems to be here), it’s much harder for the lawyers to give good legal advice and for the clients to make well-informed decisions.

      • There is a growing population of attorneys who practice in the ART area that agree with your observation of an inherent conflict of interest when representing a participant while also supplying the surrogate.

        You will find that ethical paradigm is rejected by attorneys who come from the adoption arena. They have long been socialized to represent Intended Parents and also act as agent to find and market birth mothers.

  2. I don’t understand the reasoning of the UK court. While I understand they don’t want to incentivize the breaking of the law, it just doesn’t make sense that the difference between parenthood or not is who paid the money. In cases where they would have ruled that the people are parents otherwise, They should apply some other penalty.

  3. (especially as if it would leave some child homeless- the surrogate in India probably doesn’t want it back)

  4. You are quite right that the law in the UK is really struggling over what to do with international commercial surrogacy arrangements. There have been only a handful of cases in the UK where the court has awarded parenthood after a commercial foreign arrangement (the first, which we dealt with, in only 2008) and there have been no reported cases where a parental order has been denied. Since the court has to make the welfare of the child its paramount consideration, it is difficult to foresee any other outcome, although at the same time the courts have been instructed by Parliament here that commercial surrogacy is against public policy, and this makes these applications complex and very sensitive since the English High Court has to set out in each case why it is making the particular decision.

    More worrying than the risk of not getting a parental order in my view is the growing number of English couples going abroad for surrogacy who are just not engaging with UK law. People (quite understandably) just don’t realise that English law applies its only rules and won’t automatically recognise, for example, an Indian birth certificate or a Californian pre-birth order. Since the legal solution for surrogacy is only open to the parents for a window of six months after the birth, I fear that there will be a whole group of children here in the UK without legal rights (and some of them illegal immigrants too) and without an easy way of resolving the position.

    English law is in desperate need of a review (which is something we are actively campaigning for here in the UK) but in the meantime our public information needs to be so much better so that UK couples have a better chance of understanding what they are getting into.

    • The problem of English couples going abroad and not engaging with UK law (though they bring the children back to the UK) is replicated here with the varying law among states. We’re probably better off, because the Full Faith and Credit Clause of the US Constitution ensures that states must recognize each others court orders, and presumably this includes orders of parentage. It certainly includes adoption orders.

      I gather what you are suggesting is that if couples do not engage with UK law on the return than the legal status of the children involved remains unclear, and that after six months there may be no method of clarifying that status?

      There’s something very appealing about a systematic review of the law by some authority that might then make comprehensive proposals. I think that way of proceeding is far more likely in the UK or Canada, say, than the US. Our law around ART tends to be made piecemeal, often by courts responding to the exigencies of particular cases. Even when made in the legislatures it is rarely the product of considered review. And were it to become the subject of some systematic legislative review I can only imagine the political furor that would ensue.

  5. Sadly, the problem is not that the intended parents’ position is uncertain if they don’t resolve things under English law, rather that (quite certainly) one or both of them is not recognised as a parent in the UK (and their surrogate, quite certainly, will be treated as their child’s legal mother). While the position might not immediately come to light, there are a whole host of situations in which things could unravel and (as mentioned in the original article) the parents could even be committing an offence if they do not engage with a legal process or notify social services. There are possible remedies available after six months, but none straightforward and none designed for surrogacy (and so far almost entirely untested).

  6. This issue is very interesting. Being an international surrogacy the law that really giverns this issue is International Private Law. Under International Law absent a treaty that regulates the issue between the two countries what applies is the law of the citizenship and country of residence. I don’t think is that complicated because if the couple both are UK citizens with permanent residence in the UK then the UK law applies and the child wouldn’t be recognized no matter what happened in India. The huge problem like Julie says is not only that they are creating children with no rights but children with no nationality because under IL the child cannot be neither Indian citizen nor the UK, and that is big trouble. The Hague convention has regulations for children born with no nationality but nothing in the Convention can apply to surrogacy. This is not a matter of only getting ART counsel, the couples need to get advice from an International Lawyer and revising International conventions.

  7. New South Wales (NSW is an Australian state) has just enacted laws legalising Aulturistic Surrorogacy but criminilising Commercial Surrogacy even if performed overseas.
    So the law will not apply if the contract and payment were performed in an adjacent state. Weird but we have a nanny state.

  8. Thanks for posting that development. Is there any media coverage about it if I want to learn more?

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