This article, written by Natalie Gamble for Bionews, was published on 31 May 2011:
More people are crossing borders to build their families than ever before. Prospective parents can easily access information about treatment options in countries where regulations permit treatments outlawed in the UK or where there is little or no regulation at all. But where surrogacy is involved, going abroad raises very difficult legal issues.Problems arise where the law in the destination country and the law in the parents’ home country do not match up over the basic question of who are recognised as the legal parents. In the worst cases, babies are born without any legal parents, left stranded in the wrong country without identity or nationality. These sorts of issues are not uncommon in cross-border surrogacy cases, since what drives prospective parents to go abroad for surrogacy in the first place is the wish to access more liberal surrogacy laws.From the perspective of the immigration authorities and family courts in the home countries, this creates a real headache. If a country has made a policy decision against surrogacy (or against commercial surrogacy), granting exceptions and solutions to those who evade the law by going abroad runs the risk of undermining the wider policy and encourages others to follow suit. However, the reality is that public policy collides uncomfortably with the need in practice to protect a vulnerable child who has already been born.
This is not just a problem for the UK. In a recently reported French case, twin children born through surrogacy to a French couple in the US were denied French citizenship. Similarly a German couple were recently denied a German passport for their child born through surrogacy in India.
The UK’s High Court Family Division, with its paramount focus on protecting the welfare of children, has been less intransigent, and there is a growing history of legal decisions which have retrospectively authorised foreign surrogacy arrangements.
The first case of this kind in 2008 involved a British couple whose surrogate twins were born ‘stateless and parentless’ in the Ukraine because of the conflict between UK and Ukrainian law: Ukrainian law said that the British couple were the parents, and British law said that the Ukrainian surrogate and her husband were the parents. The court ultimately sanctioned the commercial Ukrainian arrangement (an arrangement which would not have been legally possible to set up in the UK), awarding parenthood to the British parents. There have subsequently been three further reported cases in the High Court (and other applications granted without the decisions being made public) involving similar decisions.
The big problem is payments. UK law seeks to discourage payments for surrogacy, and the court is therefore struggling with the question of what it should do where parents enter into surrogacy arrangements outside the UK legal framework, and then retrospectively seek the approval of the court.
To be clear, it is not a question of the parents having broken the law. Payments for surrogacy are not (and never have been) illegal in the UK, since a deliberate decision was made when the law was put into place not to criminalise parents or surrogate mothers for making or receiving payments. What is illegal in the UK is for a third party to be paid to broker a surrogacy agreement, a rule which does not (and could not) extend to agencies outside the UK. Ultimately, it is therefore entirely legal for prospective parents to engage foreign professional surrogacy agencies to help them.
When granting a parental order (which secures the status of a family unit created through surrogacy) the UK courts also have an explicit power to ‘authorise’ a payment of more than expenses to a surrogate mother at their discretion. The intent of the law is clearly to make this the exception rather than the rule, and to encourage altruistic surrogacy as the norm. However, the growth of cross border surrogacy is requiring these exceptional powers to be exercised more regularly.
Ultimately, it is positive that there is a legal solution in the UK for children caught in these difficult legal conflicts, and it is critical that this remains the case. Any attempt to tighten up the rules to enforce restrictions on payments more thoroughly will make things worse for innocent children, who in international situations may be put at serious risk.
What we need is better information about the perils of international surrogacy, and ultimately a move towards a more open, honest and straightforward legal solution in the UK (bearing in mind that payments for ‘expenses’ in the UK are often not in practice much different in scale from payments typical for ‘commercial’ US surrogacy arrangements).
Many parents still enter into foreign surrogacy arrangements without being aware of the potential legal complications and then find themselves stranded abroad facing a legal process which is much more complicated than they had anticipated. Others know of the difficulties and some choose not to engage with the UK legal system at all (which is practically possible in certain scenarios, depending on the immigration position) thereby leaving their family’s status entirely unsecured. Either way, children are being put at risk and this is something we have a duty to take very seriously.
Natalie writes editorial in the Guardian: Can the UK deliver surrogacy reform?
Wednesday, December 29th, 2010Natalie Gamble has written a comment piece for the Guardian, and you can join the discussion about possible reforms to the UK’s surrogacy laws. Do support us with this – we need your help!
Here’s the link: http://www.guardian.co.uk/commentisfree/2010/dec/29/elton-john-david-furnish-surrogacy-law?
And here’s our article in full:
After the birth of Elton and David’s son, can the UK deliver surrogacy reform?
Elton John and David Furnish’s announcement of the birth of their son through a Californian surrogacy arrangement follows hot on the heels of a high court decision allowing payments for foreign surrogacy just a few weeks ago. Brits building their families through surrogacy seems to be a growing trend, prompting some conservative groups to cry “baby buying” and to raise concerns about the treatment of children as commodities.
But as those affected by surrogacy know, this is far from the reality. Having advised hundreds of families created through surrogacy, I know that parents do not choose that option lightly. The vast majority have heart-wrenchingly long and painful journeys behind them (tales of miscarriages, stillbirths and gruelling years of IVF disappointments). For gay couples, surrogacy gives the hope of a much-wanted family, and arrangements are entered into with planning and care. Surrogate mothers take pride in helping to create families and, whether or not they are paid, the parents involved do not treat the enormous and life-changing gift they make lightly. Children born through surrogacy arrangements are far from commodities or accessories.
The bigger question here is not whether surrogacy is a good thing – and my experience suggests that properly regulated surrogacy is unequivocally good for families – but whether our laws are up to scratch for the 21st century.
UK surrogacy law has its roots in the 1980s and has always been a fudge. Surrogacy is restricted (advertising and commercial agencies are banned) but endorsed where arrangements are deemed “acceptable” (most comfortably, where everyone consents and no more than “reasonable expenses” is paid). It isn’t a workable compromise, since there is little control in practice of what happens when people go outside the “acceptable” framework.
Over the past 20 years, other countries have pinned their colours to the mast more confidently. Many Catholic European countries have prohibited surrogacy altogether (although these restrictions are increasingly proving untenable and reform is afoot in many places). At the other end of the scale, certain US states, Ukraine and India allow enforceable commercial surrogacy. In California, couples have for many years been able to enter into a binding surrogacy agreement with the help of a professional agency (having undergone psychological counselling, legal advice and medical vetting) and obtain a court order during the pregnancy that allows the intended parents to be named on the birth certificate from the outset.
The patchwork global approach to surrogacy drives people to cross borders, and the disparity of law creates grave (and often unforeseen) problems for the families involved. Most starkly, in a landmark 2008 case , much-wanted twins born to a British couple were left stateless and parentless in Ukraine (and at risk of being placed in a Ukrainian orphanage) because neither Ukrainian nor British law recognised its own citizens as the parents. Whatever we think of surrogacy and the practices of other countries, surely everyone would agree that this is unacceptable.
UK law on parenthood in surrogacy cases is ridiculously complex, and (being designed to exclude the status of biological donors in donation situations) very often makes the surrogate and her husband the parents to the exclusion of the intended biological parents. The parents (including gay couples as from April 2010) can apply to court to remedy the situation, but the post-birth “parental order” is a clumsy retrospective tool.
Our current legal system leaves children in limbo for far too long (often up to a year while the court application is processed), in the care of parents who technically don’t even have the legal authority to take them to the doctor. Intended mothers sometimes have to give up their jobs to look after their newborn children because their lack of recognition means they have no rights to maternity leave. The court cannot extend deadlines if missed (no matter how unwittingly). Applications from single parents are prohibited, which is disastrous if one intended parent dies unexpectedly during a surrogate pregnancy (believe me, it’s happened). And that’s before we even get started on the conflicts of law and immigration issues that arise where parents go abroad for surrogacy.
If there is to be any reform, the most tricky issue to resolve will undoubtedly be payments: in the UK surrogates are supposed to be reimbursed for their expenses only (although in practice the English court can, and does, authorise payments which exceed expenses). It is not illegal for Brits to pay more than expenses, nor to travel to a country with a more liberal regime. While we may prefer surrogacy to be entirely non-commercial, we need to recognise the global realities here, and also to understand with greater sophistication that payment and altruism are not necessarily mutually exclusive.
UK surrogacy law is riddled with flaws and desperately needs reconsideration. Yes, surrogacy involves some sensitivities and yes, we need to take care to protect the interests of all those involved and ensure there is no exploitation. But if surrogacy law is to be reviewed, we need to look at this in a sensible way that understands the subtleties and complexities of real surrogacy arrangements. Let’s embrace surrogacy and recognise the hope and wonderful gift that it brings, and let’s celebrate and support families created in this way. I, for one, send Elton and David my wholehearted congratulations and wish them every bit of luck on their parental journey.
Tags: California surrogacy, Elton John baby, Guardian comment, international surrogacy law, surrogacy law
Posted in gay men surrogacy, international surrogacy, Natalie Gamble Associates news, same sex parenting, UK surrogacy | Comments Off