By Denis Campbell, health correspondent. Published in the Guardian, Monday 5 April 2010
Childless couples who acquire a baby using a surrogate mother abroad risk not being recognised as its parents in Britain if they flout British law by paying fees, fertility lawyers have warned.
Such payments, which can be as high as £30,000, could lead to those who have made them being refused permission by the high court to become the child’s legal parents, specialist solicitors say. The Human Fertilisation and Embryology Act 1990 allows couples entering into deals with a surrogate mother overseas to pay her only what is allowed here – “expenses reasonably incurred”, such as compensation for time off work, medical bills and living expenses. But lawyers handling such cases have told the Guardian a growing number of couples are embarking on international surrogacy in places such as India, the US and Ukraine, and that many of them are in effect flouting the law by paying whatever is needed to get a child. This could cause serious problems for them and the children as the high court may not grant a parental order.
More couples have sought legal advice about international surrogacy in the past two years, fertility lawyers say. Finding a surrogate in the UK is difficult, and many see surrogacy abroad as their last chance, said Miranda Baker, a lawyer in the field. Lawyers predict that more people will pursue such deals after tomorrow, when the law changes to allow unmarried and same-sex couples to apply for parental orders.
Last November Mr Justice Hedley heard that a Mr and Mrs A had paid $23,000 (£15,000) to acquire twins from a surrogate mother in California. Mr A was the biological father. His sperm had been used to fertilise an egg from an anonymous donor and embryos were implanted into the surrogate. It was clear that “a significant element, although it is difficult to specify exactly what, of the $23,000 represents a payment contrary to the [law]“, he said.
Among matters of public policy the case raised was that “the court should be astute not to be involved in anything that looks like the simple payment for [in effect] buying children”. Despite that, Hedley granted Mr and Mrs A a parental order.
Hedley took the same view in 2008 in the case of X and Y – the first international surrogacy case the high court ruled on. A married couple whose repeated attempts to become parents had failed had twins known as X and Y using a Ukrainian surrogate. They also paid more than was “reasonable” to the woman, who used the money to put down a deposit on a flat, but obtained an order.
Sam King, a family law barrister specialising in assisted reproduction, warned couples having a baby through surrogacy abroad not to assume the high court would retrospectively endorse an arrangement that was “obviously commercial”. “They are taking a chance [by paying large sums]. Not all judges may be as generous as Mr Justice Hedley has been so far. All you need is one family to be denied a parental order because too much money has been paid for the whole thing to be thrown into confusion.”
Natalie Gamble, a lawyer who acted for the parents in both those cases, said: “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.”
International surrogacy is hugely controversial. “It’s unethical and exploitative because the trade is all one-way,” said Breedagh Hughes, a Royal College of Midwives spokeswoman, on the ethics of childbirth. “It reduces babies to the level of commodities.”
Jonathan, a 32-year-old nurse, tells how he and his civil partner, Colin, 33, a financier, spent $150,000 (£98,000) on surrogacy to become the parents of Harriet, who was born in California last year. They live in London.
“We began discussing having a child in 2006, when we were deciding to become civil partners. I was feeling broody, and had always wanted to have my own biological child. We opted to pursue surrogacy in California because we would get legal custody there of the child before it was born and the surrogate would have no legal relationship to the baby.
“My sperm was introduced to eggs left by an egg donor: they were fertilised in an IVF clinic in Los Angeles and two of the embryos were implanted into the surrogate. She simply carried the child for nine months.
An agency in LA found both the egg donor and the surrogate. We never met the egg donor or knew who she was, but knew her medical history, results of her genetic tests, what she looked like and so on. We did meet and get on well with the surrogate, who was called Jennifer. She had two daughters of her own and had been a surrogate once before. There was no coercion. We had a contract, and Jennifer specified things in that like that she wanted back massages and a big hotel room for her family to stay in when she was giving birth.
Agencies in California quote a price of $100,000 to $150,000 to do everything relating to a child. The whole process wasn’t too difficult, and cost us about $150,000. We paid the embryologist $60,000, though that included the harvesting of the donor’s eggs, the IVF and the transfer of the embryos into the surrogate. It was $40,000 for the surrogate and $10,000 for the egg donor, plus $10,000 to the agency, who supplied the donor and the surrogate. Then there was $10,000 for our lawyer, $5,000 for the medical and psychological screening and another $5,000 for medication for both the donor and the surrogate, to ensure they were in cycle at the same time.
“Bringing Harriet into the UK nine months later was incredibly difficult, though, and we engaged lawyers to help us. She had to come in as an immigrant on a US passport on a six-month tourist visa. When we later filled in a form to get her British citizenship, we put ‘not known’ in the section headed ‘mother’. She now has dual nationality and is legally ours under Californian law. If we do apply, it could be an issue that we paid well over the ‘reasonable expenses’ limit – that is, we paid a fee. That’s illegal in this country, but allowed under Californian law.
“We shouldn’t have to seek a parental order. She was conceived and born in California as our child, and her birth certificate says who her parents are, so the courts here should respect Californian law.
Having to apply for a parental order, where there’d be an assessment of Harriet’s welfare and Colin would have to prove that he’s no danger to her, is an inequity. Anybody else can go out, get drunk, get pregnant, bring up a child appallingly and face no intervention or legal barriers.
I resent people saying that British couples who resort to surrogacy are buying babies abroad. We didn’t buy Harriet: she’s not picked off a shelf. She’s not a ‘designer baby’.
We had our own child and had a great team to help us. All we did was rent a woman to carry her. We paid for the services of an embryologist and an incubator who walks and makes good babies – but we didn’t buy a baby. She’s my daughter biologically, and she’s our baby.
A lot of heterosexual couples in the UK spend a lot of money having many cycles of IVF at £5,000 a time – is that not buying a baby?”
Only first names have been given to protect the family’s identity
More information on surrogacy law and international surrogacy law from the Gamble and Ghevaert website.
Sir Nicholas Wall, the President of the High Court Family Division, has made public his decision to give parenthood to the British parents of twins born through surrogacy in India. The President said the issues were of “considerable public importance” and he wished to endorse the previous judgments of Mr Justice Hedley in other similar cases.
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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