A step too far – a warning for Private Prosecutors
The number of couples entering into surrogacy arrangements has been steadily rising in recent years, including gay couples keen to have a child genetically connected to one of them. Many cases involve an international element raising complex issues. Unfortunately there is currently no harmonisation of laws across jurisdictions, nor any international conventions dealing with surrogacy, so fundamental differences between countries regarding the regulation, legality and legal implications of surrogacy exist.
Even in Europe, where more and more families are moving across borders taking advantage of the EU freedom of movement provisions, there is no certainty that a surrogacy arrangement entered into in one European country - or the child born out of such an arrangement - will be recognised in another country.
Is surrogacy legal?
Surrogacy agreements are not enforceable in the UK (section 1A Surrogacy Arrangements Act 1985). If a surrogate (birth) mother refuses to give up the child on birth, the intended parents cannot enforce a surrogacy contract. Their only recourse is to make an application to the English court for residence of the child. The court will determine the case in the child's best interests. There are reported cases both where the surrogate has been forced to give up the child following a surrogacy agreement and where the surrogate has kept the child (See for example CW v NT and Anor  EWHC 33).
Negotiating a surrogacy arrangement on a commercial basis is a criminal offence in the UK (section 2(1) Surrogacy Arrangements Act 1985). It is not illegal to pay a surrogate for her services, but it is criminal offence for a third party to take part in negotiations and to profit from the arrangement. There are also restrictions on advertising for surrogates.
The surrogate mother is the legal mother even where she has no genetic connection to the child (section 33 Human Fertilisation and Embryology Act 2008). If the surrogate is married, the legal father is the surrogate's husband (if he has consented to the treatment). If the surrogate is unmarried, the biological father will be the legal father.
To extinguish the surrogate's parental status (and her husband's if relevant) the intended parents can apply to the court for a parental order. The conditions set out in the Human Fertilisation and Embryology Act 2008 (section 54 Human Fertilisation and Embryology Act 2008) must be met. A parental order will confer joint legal parenthood and parental responsibility on the intended parents; extinguish the parental status of the surrogate (and her husband); and make the child a British citizen (if either of the intended parents was British on the day of the order).
The restriction on commercial surrogacy in Britain has curtailed the availability of surrogate mothers here and more couples are looking abroad. There is now a global market in international surrogacy, most commonly in India, Ukraine, Russia, Thailand and certain US states.
Without a parental order a child born of an international surrogacy arrangement to British intended parents may have no entitlement to British nationality. Under British nationality law, the surrogate mother will be treated as the legal mother (section 50(9) British Nationality Act 1981 as amended). Therefore, a child born for a British intended mother will not be automatically British, even where there is a genetic link. The legal father, for nationality law, will be the husband of the surrogate mother, regardless of whether he consented to the treatment. If the surrogate mother is unmarried, the intended father may be able to pass on his British nationality automatically if he 'satisfies prescribed requirements as to proof of paternity' (section 50(9A) British Nationality Act 1981 as amended).
If the child is automatically British, an application can be made for a British passport. If not, it may be possible to register the child as British as the secretary of state has a wide discretion over British registration (section 3(1) British Nationality Act 1981). The FCO has recently issued guidance for intended parents making applications for registration and/or a British passport for children born of a surrogacy arrangement overseas. The immigration rules can make it very difficult for intended parents who cannot pass on their British nationality to bring their child into the UK.
In England and Wales, applications for parental orders have increased from 47 in 2007 to 149 in 2011, partly because the law changed on 6 April 2010 enabling same-sex couples to apply for parental orders. Statistics regarding the number of surrogacy arrangements worldwide are unfortunately unreliable but we know from anecdotal stories this route is ever more popular.
There is currently no worldwide regulation of surrogacy, meaning some countries adopt a very liberal approach to commercial surrogacy. Unfortunately, therefore, the potential for exploitation is high. Concerns about the welfare of surrogates and the complications of cross-border surrogacy have led to calls for reform.
Earlier this year a European Parliament-commissioned report on surrogacy across the EU Member States (A comparative study on the regime of surrogacy in EU Member States (2013)), highlighted the disparities in national laws on surrogacy.
The report, written by academics from the LSE and the Université Paris I, sets out a thorough analysis of surrogacy laws across Europe. Four non-EU countries were compared (Australia, Russia, South Africa and the US).
EU law does not regulate surrogacy and as a result, there is a wide range of approaches in the 28 member states and no specific guidance from decisions by the European Court of Human Rights or European Court of Justice.
Seven member states have a complete prohibition on surrogacy (Bulgaria, France, Germany, Italy, Malta, Portugal & Spain). Eight more prohibit commercial surrogacy. Greece is the only EU country with a comprehensive framework to regulate, facilitate and enforce (altruistic) surrogacy arrangements. Only six member states have partial legislative frameworks, guidelines or draft legislation specifically dealing with surrogacy.
The legal complications have put surrogacy at the top of the legislative agenda for several EU countries (for example Belgium where legislation is proposed). In contrast, other European countries prohibit all forms of surrogacy; for example, in France, surrogacy is not recognised and criminal sanctions are imposed.
The LSE Report points out the complexities of harmonisation including choice of jurisdiction (i.e. which court has jurisdiction to hear any disputes) and choice of law (i.e. for the resolution of any dispute). In the absence of harmonisation, each EU court must apply its own national rules to assess the validity and enforceability of a cross border surrogacy contract.
The Hague Conference on Private International Law is currently working on the "private international law issues surrounding the status of children, including issues arising from international surrogacy arrangements". Preliminary research has been carried out and a final report is due in April 2014.
The report will consider the desirability and feasibility of a new international treaty (e.g. a new Hague Convention); and whether any other work should be undertaken to resolve the private international law issues / legal parentage issues which arise in international surrogacy.
The complexities of cross border surrogacy arise because of the potential number of interested legal systems; the surrogate's country of residence; the intended parents' country of residence and their citizenship (if different); the country where the birth is taking place and where the surrogacy agreement is entered into.
Harmonisation could take a number of forms, covering the multiple issues surrogacy raises. For example:-
Regulation of surrogacy and protection of surrogates, could be achieved, to a certain extent, by having international clinic accreditation / licensing (as in the UK) so patients have confidence that the clinic they choose abides by best practice. The protection of surrogates merits separate discussion, but we suggest some regulation is desirable - minimum standards, psychological support and regulated fees could form part of this debate.
Given the wide variance of national approaches to surrogacy (public policy, religious and ethical imperatives) we are highly sceptical that worldwide harmonisation on enforceability of surrogacy contracts, or the legality of the practice, is possible.
In our view, harmonisation is most desirable and long overdue where it concerns recognition of a child's status post birth. Article 7 of the UN Convention on Rights of a Child states that "The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents."
The focus should be on the recognition of legal parentage orders made abroad and of parentage established by a foreign birth certificate. In the UK, this could mean that pre-birth orders made in the USA, recognising intended parents as the legal parents, are recognised in the UK rendering the Parental Order process unnecessary.
Worldwide harmonisation of the nationality and immigration implications of overseas surrogacy arrangements is difficult to foresee as laws recognising entitlement to citizenship are an integral part of a state's sovereignty. Worldwide recognition of legal parentage orders may allow for commissioning parents to be treated as legal parents for the purposes of a country's nationality laws. However, even if this were achievable, a child would not necessarily automatically benefit from the nationality of the commissioning parents. This would depend on whether their nationality could descend, as a matter of their domestic law, to a child born outside of the country of nationality.
The current diversity in surrogacy laws can, and does, lead to some children being born stateless. The importance of a child having a nationality has been recognised in numerous international agreements, including the UN Convention on Rights of a Child. Resolving the issue of statelessness in international surrogacy may, therefore, form a topic on which consensus could be reached as part of an international effort to tackle civil status issues in international surrogacy.
Our initial hope was that the LSE comparative report would be the precursor to harmonisation across Europe. However, the lack of consensus between EU countries on the legality of surrogacy means we are a long way off. What is clear is that the difference in worldwide approach will continue to cause legal confusion and complication, as surrogacy becomes commonplace.
This article was written by Claire Wood, Family Associate, and Katie Newbury, Immigration Solicitor - first published in Solicitors Journal (Vol 157 no 44 19-11-13), November 2013
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