The challenges for intended parents and surrogacy arrangements during the coronavirus crisis
The majority of parents we advise who have had a child using a surrogate have an international connection. One or both of the parents may have been born, or now live, abroad and/or the surrogacy arrangement may have taken place abroad. One of the questions I am regularly asked by parents is whether the legal position in either the country in which the child is born or the country in which the parents live is recognised in England. My answer is always no. There is currently no international convention on the recognition of laws relating to surrogacy arrangements and the ability to draft such a convention is likely to be difficult as surrogacy is viewed and treated so differently across the globe. England and Wales does not recognise the legal position in other countries even where surrogacy is a mature and well regulated practice.
In England and Wales, if a child is born following a surrogacy arrangement either here or abroad, the surrogate will be the legal mother (whether or not she is genetically related to the child) and her husband, if she is married, will be the legal father. This is the case no matter what the position is in the country in which the child is born. If the surrogate is not married, the biological father of the child may be considered the legal father under English law but he will not necessarily have parental responsibility (PR) for the child.
In order to extinguish the surrogate’s and her husband’s PR and legal parentage, intended parents must currently make an application to the English court for a parental order (PO), which will formally recognise the intended parents as the legal parents under English law. In the case of an unmarried surrogate where the intended father is genetically related to the child, a PO is still required to extinguish the surrogate’s legal parentage, to give the intended mother or second intended parent legal parentage and, in the case of children born abroad, to give both intended parents PR.
In order to be eligible to make a PO, parents must meet the criteria set out in section 54 (for two applicants) and section 54A (for one applicant) of the Human Fertilisation and Embryology Act 2008 (“s54 criteria”).
In terms of process, parents will make an application to the court and a first hearing will be listed so that the Judge can make directions (an order) for the onward progress of the case. The Judge will order the parents to file statements in support of their application for a PO and will appoint an independent child welfare officer, called a parental order reporter (POR), to prepare a report for the court setting out the background and whether, having met the family, they consider that it is in the child’s best interests for a PO to be made. A final hearing will also be listed. The POR is usually a member of a government body called CAFCASS (the Child and Family Court Advisory and Support Service) which is made up of social workers whose roles are to prepare welfare reports for the court. The POR’s role is to meet the intended parents and the child, consider the background to their surrogacy journey, plans for the future and the s54 criteria and make a recommendation in respect of the order which should be made.
At the final hearing, the court will give a judgment confirming that the parents meet the s54 criteria and, having considered the parental order report, that the making of the order is in the child’s best interests. From the point the PO is made, the surrogate’s and her husband’s legal parentage (under English law) is extinguished and the parents are considered the child’s legal parents. Shortly after, the General Register Office in England will produce a new birth certificate with the parents’ names on. There is no mention of the surrogate or the surrogacy arrangement on the new birth certificate.
For many of the parents I help, either or both have an international connection or live abroad. In these cases, we consider whether a PO is necessary and this usually depends on the current legal parentage position (i.e. whether the surrogate is married), their ties to the UK and the legal position in the country in which they live. If the couple have limited ties to the UK and do not intend to live here in the future, it may be that (subject to any immigration considerations), they decide not to apply for a PO at all even if they are entitled to do so. The position will also depend on the recognition of any foreign surrogacy orders in their country of residence.
The Law Commission of England and Wales and the Scottish Law Commission initiated a consultation looking at buildings families through surrogacy in 2019 and reported its initial findings at the end of the year. While we do not yet know the full extent of the changes, initial recommendations include the introduction of a new pathway to legal parenthood for families who have undertaken their surrogacy journey in the United Kingdom. Under the new pathway, if the requirements are met, the intended parents will be the legal parents of the child from birth and subsequent court proceedings will not be required.
The law commissions have recommended amendments to the s54 criteria such as the removal of the requirement for a genetic link (for domestic arrangements) in cases of medical necessity and the inclusion of habitual residence so that one of the intended parents must have either their domicile or habitual residence in this country. The project is now in the policy development stage and we are waiting to hear what of these and other amendments may be introduced.
Finally, the law commissions recommend the introduction of a national surrogacy register which will record information about the surrogate, intended parents and any egg or sperm donors. Children born as a result of a surrogacy arrangement would then have access to that information when they are older.
In Italy, surrogacy practices are explicitly prohibited. In fact, anyone who creates, organises or advertises surrogacy commits an offense of criminal relevance (Article 12 paragraph 6 of Law 40/2004).
However, since surrogacy is legitimate in other countries, Italian courts have been faced, in recent years, with claims concerning the recognition of foreign orders and birth certificates for children born abroad by means of a surrogate.
Since there is no international convention on the subject, the criteria to be followed in relation to the recognition of foreign orders and birth certificates relating to a child born through surrogacy are those set out generally by the Italian Private International law (Law 218/1995). One of the requirements to enable the recognition of a foreign order is the compliance with “public order” (art. 64 - 68 letter g Law 218/1995; art. 18 Decree 396/2000; art. 23 EU Reg. 2201/2003).
Case law has arisen in cases involving parents by way of surrogacy because the parents, who are declared as such on the foreign birth certificates and/or orders, have had their requests for the recognition and registration of their status as parents rejected by the Italian authority (Birth Register Office).
The reason for the rejections was because to recognise them as parents would supposedly conflict with the public order, as those foreign orders and certificates related to the use of a practice that is explicitly prohibited and criminally sanctioned by Italian law. Same sex parenthood in itself was also considered as another potential reason of conflict against public order in Italy.
Decisions given by first instance courts (to which the parents resorted to obtain their formal recognition as parents in Italy) were inconsistent, causing uncertainty and unequal treatment. At the same time, however, the decisions are the only source of guidance or regulation in respect of the effects of surrogacy with regard to the children’s status and the rights of all parties involved, as no guidelines are provided by the Law (all the Law currently stipulates is that surrogacy as a practice is prohibited).
Recently, cases involving surrogacy arrangements have finally reached the Supreme Court of Cassation.
Italy is a civil law system, so there is no principle of the “binding precedent” (whereby precedents set by the higher courts must be followed by the lower courts) and judges are “subject only to the law” (art. 101 Italian Constitution). However, the rulings given by the Supreme Court of Cassation, especially when sitting in Joint Sessions, are particularly authoritative.
This Court has a function of ensuring the correct interpretation of the law and so if lower courts decide to deviate from the principles stated in its judgments, they need to explain their reasons why (art. 374 co. 4 Italian civil procedure code).
A judgment given in May 2019 by the Supreme Court of Cassation (Corte di Cassazione, ruling n. 12193 of 08.05.2019) has finally provided some guidance to public authorities and lower courts on how to deal with the status of children born abroad using a surrogate.
The case concerns a same sex male Italian couple, married abroad, who had twins using a surrogate in Canada. The two men were declared parents of the children by parental orders made in Canada. The Birth Register Office of the city of Trento, Italy, accepted the transcription of the first parental order, concerning the parent to whom the children were genetically related, but refused the transcription of the second parental order, regarding the other intended parent, on the basis that it conflicted with the public order. The parents therefore appealed to the Court of Appeal of Trento, requesting the recognition of the second Canadian parental order.
The Court accepted the claim, stating that the Canadian order was compliant with the public order since it was consistent with the fundamental principle that it was in the children’s best interests for their status and rights towards their other parent formally recognised. The Court stated that, in considering the issue of the compliance with public order, it should not be assessed on the basis of a single ordinary provision (such as the prohibition of surrogacy) but that regard should be had to the fundamental principles expressed by the Italian Constitution, the EU founding Treaties, the EU Charter of Rights and by the International Conventions regarding Fundamental Rights to which Italy is part (Court of Appeal of Trento, ruling dated 23.02.17).
The judgment was appealed by the Italian public authorities involved (the Public Prosecutor, the Ministry of Internal and the Mayor of Trento) to the Supreme Court of Cassation, which gave judgment in Joint Session. The Supreme Court overturned the decision on the basis of a different interpretation of the parameters of public order. According to its analysis, compliance with public order is to be assessed not only with regard to the fundamental principles of the Constitution and to international conventions to which Italy is part, but also by measuring how those tools are embodied and expressed by ordinary law provisions, such as those prohibiting surrogacy.
In its judgment, the prohibition of surrogacy was considered as an expression of a supreme principle of the Italian legal order, related to the protection of the dignity of the woman. On this basis, the Supreme Court rejected the request of recognition of the second Canadian parental order.
The court also suggested however that a possible means to ensure the protection of the rights of the children towards the second intended parent would have been to resort to the so called “adoption in peculiar cases” (art. 44 lett. d Law 184/1983) legislation (commonly referred to as “step-child adoption”).
Access to this adoption route was not originally allowed for same sex partners, but Courts, by means of a broad interpretation of the Adoption Law, extended it. The judgment mentioned above by the Supreme Court of Cassation in Joint Sessions, confirmed this interpretation.
“Adoption in peculiar cases” differs, in its effects, from a “full adoption”. It implies the maintenance of a connection between the child and their family of origin in terms of rights and duties (e.g. duty to respect their parents of origin and right to alimony in case of need). Also, its effects are not extended to the relatives of the adopter: therefore no legal links are established between the adopter’s family and the child. The adopting parent’s surname is added to, but does not substitute, the original parent’s surname.
The decision in respect of a request of adoption “in peculiar cases” must be based following a specific assessment of the best interests of the child (as recommended by social workers and the court).
Although the above case heard by the Supreme Court of Cassation focused on two fathers who had entered into a surrogacy arrangement in Canada, the principles applied can be extended to other cases, including those regarding opposite-sex couples and those who have obtained parental orders in countries other than Canada.
In general, it may be said that Italy will not recognise a foreign birth certificate or order with respect to the intended parent, who is not genetically related to the child born by means of surrogacy. The intended parent will have the chance, however, to apply for “adoption in peculiar cases” as referred to above.
If neither of the intended parents had a genetic connection with the child born through surrogacy (whether the parents were same sex or not) a recognition of their status as parents would be highly improbable. .
Adoption in peculiar cases would be possible (but always subject to the Court’s assessment and not automatic) provided that certain legal requirements are met (e.g. existence of a well established relationship between the intended parents and the child).
When the intended parent does have a genetic connection with the child, it is highly likely that their status as a parent would be recognised, because of the importance the court places on the genetic connection when assessing what outcome would be in the child’s best interests.
When it comes to the transcription of the birth certificate/recognition of a foreign order, a judge would always have to balance all the competing factors. The acknowledgement of the “genetic truth” would be most influential but does not result in automatic recognition.
The Supreme Court of Cassation has confirmed that when a female same sex couple, where one woman was the carrier and the other woman was the egg donor, is not considered a form of surrogacy.
In two recent cases, the circumstances in which a same sex couple underwent IVF abroad were assimilated by the Court with IVF cases involving heterosexual couples which is legitimate and disciplined in Italy (by Law 40/2004) (IVF in Italy is only available for opposite-sex couples).
One case dealt with the transcription in the Italian civil register of a birth certificate obtained in Spain following the birth there of a child to two women. The Court of Cassation qualified the practice as IVF and therefore distinguished it from surrogacy and determined that the birth certificate could be accepted as it did not conflict with the public order (Corte di Cassazione, ruling n. 19599 of 30.09.2016).
A similar case involved two women, Italian citizens, who had had IVF in the UK. The birth certificate of the child had already been registered at the Italian Birth Register Office naming only the biological mother. The Court of Cassation recognised the English birth certificate and position in respect of parentage and permitted the addition of the second female parent’s name on the Italian birth certificate (Corte di Cassazione, ruling n. 14787 of 14.06.2017).
The case law therefore confirms that the transcription of a foreign birth certificate/order regarding a child born by IVF to two mothers should be accepted by the Italian authorities (or, in the case of an initial rejection to the request to register, there would be grounds to file a claim to oppose it).
There is now in Italy at least authoritative case law providing some guidelines in respect of children’s rights and statuses when born abroad by the use of a surrogate. The position is not however as certain as it would be if the rules were proscribed by Law.
Since our case law is not binding, birth register offices and courts of first instance could ignore the previous indications given. If this occurs, decisions could certainly be challenged in front of higher courts but the path would be long and expensive.
Concerning the second committing parents that are not genetically linked to the child born by means of surrogacy, the acknowledgment of the possibility for them (same sex parents included) to access to “adoption in peculiar cases” is a significant alternative tool to formalise a parenthood status. As referred to above, however, there remains uncertainty with this process which involves an evaluation of the best interests of the child by the Court.
The above quite different legal systems and processes by which parents can be legally recognised as their children’s parents highlights the difficulties with creating families across international borders. It is imperative that parents take legal advice at home, the country in which their child will be born and in any other country in which they have a significant connection before embarking on any surrogacy arrangement.
This blog was originally published in the November 2020 issue of Family Law Journal.
If you have any questions or require advice about making an application for a parental order, either as a single application or as part of a couple, please contact a member of our family team.
You may also be interested in reading more about international surrogacy and the position in the UK HERE. Further information can also be found on our Frequently Asked Questions page about surrogacy and our previous surrogacy and fertility blogs.
This article was originally published in the November 2020 issue of Family Law Journal.
Connie Atkinson is a Partner in the family team at Kingsley Napley and she has experience of dealing with all aspects of private family work relating to both finances and children. Connie also has expertise in international surrogacy cases and helps parents with the parental order applications required following their children’s birth. On these cases, she works closely with members of our immigration team to resolve any issues in bringing the children home.
Veronica Dindo is a Solicitor at LawLab studio legale in Verona, Italy. She specializes in family law and has experience of dealing with cases related to custody of children, parental responsibility, adoption, as well with separations, divorces and the related financial claims, including cases with an international element. She is a regular speaker in international seminars on family law matters, including surrogacy.
 That is to be intended as “international public order”: a limit to the recognition of judgments and certificates into the Italian legal system. Its content consists in the undeniable fundamental principles and rights that characterize the core of the Italian system. It is to be deduced from the Italian Constitution, the EU founding Treaties, the EU Charter of Rights and the International Conventions regarding Fundamental Rights to which Italy is part.
 This interpretation was endorsed for the first time by the Supreme Court of Cassation with ruling n. 12962 of 22.06.2016.
 A known case in which the Court denied two Italian citizens the recognition of a birth certificate of a baby born by way of surrogacy in Ukraine. Their request of recognition was rejected and the baby was put up for adoption (Court of Cassation, ruling n. 24001 of 26.09.2014).
The intended parents sued the State of Italy before the European Court of Human Rights for the alleged violation of art. 8 ECHR. The Court accepted the request in first instance (Paradiso and Campanelli vs Italia – sec II – 25358/12 – judgment 27th January 2015), but the Grand Chamber reversed the decision, finding no violation of the right to private and family life, since there was no genetic link between the child and the intended parents and because of the short length of time (six months) that the child and the intended parents had lived together before being separated (and the child being put up for adoption) (Paradiso and Campanelli vs Italia – Grand Chamber – 25358/12 - judgment of 24th January 2017).
 Those statements are consistent with the motivation given by the Italian Constitutional Court in one of its judgments. This is a highly authoritative Court in the Italian legal system, as it has the task of assessing the compliance of the laws with the Constitution. Its judgments are actually binding and can result in the cancellation of a law or of a part of it, when found to be conflicting with the Constitution; or in dictating the declaration of the correct interpretation of a law, for it to be considered aligned with the Constitution. The case in point concerned a child born by surrogacy in India. He had a genetic link with the intended father, who had been recognised as such, no genetic connection with the mother, who had appealed the decision (Corte Costituzionale, ruling n. 272 of 18.12.2017).
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