Harcus Sinclair v Your Lawyers - Another nail in the coffin of solicitors’ undertakings?
The Independent newspaper has reported that the number of Parental Orders made in England following a surrogacy arrangement have tripled between 2007 and 2011. Anecdotally, figures have increased even more rapidly since 2011. It has also been reported that, since 2010, 22% of applications for Parental Orders have involved a foreign surrogate. (A Parental Order is an English court Order which extinguishes the parental responsibility of a surrogate and makes the commissioning parents the legal parents in English law).
So often, when writing about commercial surrogacy, the media highlights the possibility for exploitation and the lack of regulation in some countries. Emotive phrases such as “exploitation by rich westerners”, “wombs for hire” and “poor foreign surrogate mothers” are used to provoke comments and opinions. While there are valid concerns about the welfare and care for surrogate mothers in some parts of the world, in my experience of international surrogacy cases, particularly those involving the US, this couldn’t be further from reality. Commercial surrogacy in the US is expensive, but there is generally a high level of support for the surrogate (both physical and psychological) and many clients maintain a good relationship with their surrogate well beyond the birth. Surrogates have often completed their own family before helping the commissioning parents to become parents. The emotive phrases also fail to reflect the challenges and often years of agonising attempts either to conceive or adopt a child of their own, which the intended parents have often been through.
In light of the legal and administrative complexities surrounding international adoption and the length of time the process takes (the local authority’s Home Study Report alone can take six months to a year), many more clients are choosing surrogacy over adoption. Undoubtedly, the debate over international surrogacy will continue (particularly following the Hague Conference for Private International Law’s preliminary report on international surrogacy in March 2012) and the number of Parental Orders being granted by the English Court will continue to rise.
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