Parents Michelle and Paul (names changed) spoke to BBC Radio 4′s World at One today about their experiences of international surrogacy, and the problems with surrogacy law in the UK. Their legal case (in which we represented them successfully) was reported anonymously by the High Court last December (as Re L (a minor) 2010) and received national press coverage at the time. Michelle and Paul took the brave decision today to speak about their personal experiences, in order to highlight the difficulties they have faced.
As Michelle and Paul explained, they entered into a surrogacy arrangement in Illinois after a very long and difficult journey of failed IVF and miscarriages. They did so in accordance with the law in Illinois and underwent a thorough vetting process with a clear legal procedure designed to protect all involved. Under Illinois law, they were treated as the legal parents of their child from the outset.
However, UK law treated their surrogate and her husband as the legal parents, despite the fact that neither had any biological connection with the child. Michelle and Paul therefore needed an English High Court order to become Mum and Dad in the UK.
One of the key issues for the court here to consider was the mismatch between UK and Illinois law regarding the issue of payments to their surrogate. In Illinois, payments for a surrogate’s inconvenience and discomfort can legitimately be made, although payments for a child are not allowed. In the UK, the law refers to ‘reasonable expenses’ (with no definition of what that means) but confusingly also gives the court a specific power to ‘authorise’ other payments. Ultimately in this case Mr Justice Hedley, noting that Michelle and Paul were the ‘most careful and conscientious of parents’, agreed to authorise the payments so that they could be approved as legal parents. However, he did not accept that the inconvenience payments to their surrogate were reasonable expenses.
It’s a story with a happy outcome, but one which shows that working out what is acceptable to pay for surrogacy at home and abroad is tricky.
In Illinois there is a clear legal framework in which payments are agreed and set out in writing at the outset (following counselling, psychological assessments and legal advice for all). If everything is done correctly at the outset, then the child is a part of the intended parents’ family throughout.
There is no such certainty under UK law. Every judge can interpret what is ‘reasonable’ differently, and the issue will only be considered after the birth of the child when the payments have been long since made, by which time there will always be tremendous pressure on the court to make an order protecting the child’s welfare. As Michelle pointed out so poignantly, the value paid to the surrogate in this case was in fact no more than what has been accepted as being reasonable expenses for surrogacy in the UK, but it was not considered expenses in their case because the arrangement was an international one set up within a different legal framework.
We are left asking – where the values being paid for surrogacy are comparable, does it make any sense to treat them differently just because they are called compensation rather than expenses, and just because they are agreed in writing at the outset? Would it not be better to have a more upfront system in the UK which resolves these issues at the start, rather than after the event?
You can hear the interview at http://www.bbc.co.uk/programmes/b006qptc
There is more information about international surrogacy law on our website.
So many clients tell us that this is the question they are asked when they tell their friends – and even their fertility doctors – that they are considering surrogacy. Is it true? Are surrogacy arrangements in the UK very risky, with the surrogate mother holding all the cards and having an absolute right to keep the baby? Do those who embark on surrogacy arrangements frequently end up with the surrogate mother keeping the child in practice? 
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 
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
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