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.