International Surrogacy - Behind the Media Hype

20 March 2012

In December 2011, we saw the most recent reported High Court case on the controversial and relatively new area of law relating to international surrogacy arrangements.  In the case of Re X and Y (Children) [2011] the Judge declared the subject matter of international surrogacy to be one of “considerable public importance.” 

Aside from the many celebrity cases we hear of in the press (Elton John, Nicole Kidman, Sarah Jessica Parker) many British couples are turning to international surrogacy in their (often last resort) attempts to have a child to whom one or both of them will be genetically related.   

There is a real shortage of surrogates in the United Kingdom and there are limitations on the availability/cost of fertility treatment, factors which lead many couples to consider fertility treatment and surrogacy abroad, in particular the United States, India, and the Ukraine. 

The practice of international commercial surrogacy raises sometimes difficult moral and ethical questions, and, from an English law perspective, the legal position is also extremely complex.  In England and Wales, surrogacy arrangements are unenforceable, even where there is a genetic connection between the surrogate child and one or both of the couple.  To many couples, the law in England is inexplicable and confusing, particularly when, in the country where they have entered into the surrogacy agreement, they are often considered to be the legal parents and surrogacy agreements are fully enforceable.

Couples can apply to the English Court for a “Parental Order”; if granted, this will recognise them as the legal parents and will end the legal parentage of the surrogate mother (and her husband, if applicable).  Married couples, civil partners and couples living together as partners in “an enduring family relationship” can make an application for a Parental Order.  There are a number of conditions which need to be met for the Court to make a Parental Order, including a provision that there should be no payments to the surrogate mother save those necessary to meet reasonable expenses.  In international cases, this condition generally causes difficulties, since both the surrogate and the agency or clinic introducing the surrogate to the couple will expect to be paid for their services.  

In the recent case of Re X and Y the Judge granted a Parental Order notwithstanding that payments in excess of reasonable expenses were made to the surrogate. The Judge made it clear that a child’s welfare is the paramount consideration for the Court.  He said that the parents had acted in good faith with no attempt to defraud and that the payments were not so disproportionate that the granting of a Parental Order would be an affront to public policy. 

A further consideration is the immigration status of children born abroad following an international surrogacy arrangement.  Such children will not automatically be treated as British citizens and cannot therefore enter the UK with British passports.  In some other countries (e.g. India) they will however be treated as the legal children of the couple and will not therefore be entitled to a passport giving them citizenship of that country; in those circumstances, the child can be effectively rendered “stateless”.  

This article is only intended to give a very brief overview of the law relating to surrogacy.  Both our specialist surrogacy team and our specialist immigration team have extensive experience of advising and assisting couples undertaking or investigating international surrogacy arrangements.

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