Babies, Bodies and Borders: The Risks and Rise of Surrogacy

Bryan Cave Leighton Paisner
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Babies, Bodies and Borders: The Risks and Rise of Surrogacy

Despite its challenges, surrogacy is becoming a readily available form of family formation for many who have endured considerable heartache and difficulty in conceiving naturally. Surrogacy has an important role to play within our modern society particularly bearing in mind the overwhelming tide-change in social attitudes, the importance of assisted reproduction, such as IVF, and the introduction of same sex marriage which was legalised back in 2014.

Recent data has highlighted that there is a growing number of people who are turning to surrogacy which include:

  • Same sex couples wanting to have a much longed for family;
  • Heterosexual couples unable to get pregnant naturally;
  • Single women who have been unable to find a lifelong partner and wish to become a single parent.

One of the key pivotal changes appears to have come in 2008, when non-profit surrogacy services were legalised in the UK and same-sex and unmarried couples were permitted to apply for parental orders (the means by which intended parents can be recognised as a child’s legal parents instead of the surrogate). The number of parental orders has since grown from around 50 per year a decade ago to around 300 per year and this number is continuing to increase. High profile celebrities choosing to use surrogates has also bolstered the social legitimacy of surrogacy – figures such as Tom Daley and Dustin Lance Black, Kanye West and Kim Kardashian, Sarah Jessica Parker and Elton John spring to mind. The reality is that for many, surrogacy provides a faster option in contrast to adoption which is renowned to be a complicated and slow process.

Notwithstanding the apparent advantages to choosing surrogacy, it is unquestionably a complex, controversial and constantly evolving area of family law. Whilst social attitudes to surrogacy have developed dramatically, it is plain that the law has struggled to keep up and requires much needed legal clarity and reform. Although surrogacy in the UK is legal, the lack of detailed legislation around the issue has meant that many intended parents have chosen to go abroad instead (most notably, the USA). With information so readily available by the rapid development of the internet and cheap travel, UK intended parents are still choosing international commercial surrogacy abroad as opposed to opting into the process locally.

BACK TO BASICS:

So what is surrogacy?

Surrogacy is the practice of a woman (whom we refer to as the “surrogate”) becoming pregnant with a child who may, or may not, be genetically related to her, carrying the child and giving birth to the child for another family (whom we refer to as the “intended parents”).

Different forms of surrogacy (traditional vs gestational):

Traditional surrogacy is a surrogacy arrangement where the surrogate is genetically related to the child born of the surrogacy arrangement because her own egg is used. Artificial insemination will be used to conceive the child.

Gestational surrogacy is a surrogacy arrangement where the surrogate is not genetically related to the child born of the surrogacy arrangement because her eggs have not been used. IVF will be used to conceive the child.

Surrogacy in the UK, the current position – problematic and impractical

The basic framework of surrogacy law in England and Wales consists of a combination of court judgements and two key pieces of legislation dating back to the 1980s: the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008.

The Surrogacy Arrangements Act 1985 makes agreements to enter into surrogacy arrangements unenforceable and the Human Fertilisation and Embryology Act 2008 sets out the rules determining who are the legal parents of any child born through surrogacy. Generally speaking, the legal parents of the child will be the woman who acted as the surrogate and her spouse or civil partner if she has one (unless they did not consent to her acting as surrogate). Where the surrogate is not married or in a civil partnership, the second legal parent will be one of the intended parents, if his sperm was used. Otherwise, if the intended parents wish to be recognised as the child’s legal parents, they must apply for a parental order from the court to transfer legal parenthood and parental responsibility from the surrogate (and her spouse/civil partner) to the intended parents.

There are however deeply concerning problems with this arrangement in the UK, for both surrogates and intended parents.  It is therefore perhaps unsurprising that many prefer to go abroad on the basis that in a number of overseas countries, including a number of the US States, intended parents can be recognised as legal parents of the child from birth.

By making surrogacy agreements unenforceable, neither the surrogate nor the intended parents have any certainty about their relationship, about the child and their rights and obligations to each other. It means that, although rare, a surrogate could change her mind at any stage throughout the process and potentially, keep the baby. A surrogate cannot be forced to hand a child over to the intended parents simply because there is an agreement that says she will agree to do so. Similarly, intended parents can also change their minds and walk away, leaving the surrogate, literally, with full responsibility for the baby. For many wishing to go through surrogacy, the legislation in the UK does not provide them with the security and clarity they are looking for (any potential “risk adverse” intended parents will find it extremely off putting). This is particularly so where a parental order in the UK cannot be granted until at least six weeks after birth (and until then, the surrogate is considered the legal mother of the child).

Both parties also lack the financial security they would otherwise have if surrogacy agreements were enforceable. By way of example, in certain states in the USA, intended parents will often voluntarily pay surrogates tens of thousands of pounds for their service on the basis that the surrogate has no way of taking the intended parents to court to make them pay and the intended parents have no way of reclaiming any money given to the surrogate, should the surrogate decide to keep the baby. A surrogacy agreement can also clarify all rights and obligations each party has so that there is no confusion of the proposed arrangement.

The current status of the law in the UK also means that often at the time of the child’s birth, neither of the intended parents are recognised as the child’s legal parents. Without legal parenthood, intended parents lack the legal authority to make decisions about their child’s welfare, including education, housing and medical care. The fact that obtaining a parental order can be so difficult also means that in many cases, intended parents go on to raise a child without obtaining legal parenthood. Long-term, this can have significant and serious consequences on all involved. From an inheritance perspective, if the intended parents do not obtain legal parenthood, their child might find that, on their parent’s death, they are not entitled to any of their inheritance, either through the parent’s will or under the current intestacy rules. On the contrary, the implications can also be significant for a surrogate – if no parental order is made, then the surrogate retains legal parenthood. They can therefore be liable for child maintenance payments and if they die without a will, then part of their estate might pass to an individual whom they do not consider to be their child, at the expense of the other beneficiaries of their estate.

There are also a number of restrictions on who can apply for a parental order, and thereby become the legal parent of a child born through surrogacy. For instance, intended parents can only apply for a parental order where IVF or artificial insemination was involved in the conception of the child. If conception was through sexual intercourse, the intended parents cannot apply for a parental order. In that situation, their options might be reduced to applying for the adoption of the child in a much longer and more administratively burdensome process.  Parental orders are also only available where one or both of the intended parents are genetically related to the child i.e. where one of the applicants provided eggs or sperm to bring about the creation of the embryo. Effectively, the law therefore excludes couples where both partners are infertile from being able to obtain a parental order. The result is that certain individuals and couples who engage in surrogacy arrangements are automatically precluded from obtaining legal parenthood through a parental order, leaving them in a legally precarious and uncertain position with respect to their child.

For those trying to navigate surrogacy arrangements without independent legal advice, the law can also appear contradictory and confusing. For instance, the HFEA mandates that parental orders must be applied for within 6 months of the child’s birth. But in practice, the court has frequently authorised parental orders when applications have been made after the six month period has elapsed – in one case the High Court granted a parental order for a child who was aged 8. Similarly, the HFEA stipulates that parental orders can only be granted where no money or other benefit (other than reasonable expenses) have been given to the surrogate, unless the payment is subsequently authorised by the court. In practice however, payments are almost always authorised – even where they clearly exceed the cost of reasonable expenses. For many, what is deemed to be “reasonable” should not be considered one universal figure as each individual surrogate will have a different medical history and may require more assistance than say, another surrogate. Although the courts have set out a number of factors to be considered when deciding whether to authorise payments, in practice judges are faced with a fait accompli – it’s almost impossible to imagine a set of circumstances where the welfare of the child would not be gravely compromised by a refusal to make a parental order in favour of the intended parents where the surrogate has provided her consent. 

International surrogacy – is the grass greener?

The unintended effect of UK surrogacy law has, in part, been to drive prospective parents overseas to seek out surrogacy arrangements. Whilst surrogacy options abroad do seem more appealing than in the UK, they too come with their own risks. Many intended parents enter into the process abroad unaware of the country’s complex laws governing surrogacy and may potentially become embroiled in complex legal disputes.

The Law Commission estimates that about half of UK-based prospective parents go abroad for surrogacy. The reasons why people choose to go abroad are clearly complex, and range from financial accessibility and greater privacy, to the desire to access ethnically matched donors or surrogates who meet their cultural or religious needs. However, for many, the attraction is what they see as more favourable legal parenthood provisions and a smoother, more professional experience, including shorter waiting times and better medical care. The advantages of pursuing surrogacy abroad provides intended parents with the security and stability they are after in circumstances where they have had a turbulent and challenging journey to have a baby. For instance, in some countries, it is possible for intended parents to be named on the birth certificate, rather than the surrogate being named, which many see as being a significant advantage.

There are also a multitude of commercial and professional agencies operating in the surrogacy industry overseas, whose business and reputation rests on providing a good experience for all involved. By contrast, in the UK, there are only three surrogacy agencies, which all act on a non-profit basis due to the ban on the commercialisation of surrogacy. These agencies tend to operate on the basis of ‘surrogacy through friendship’, that is, they help match surrogates and intended parents on the basis of their relationship with one another. In practice, this means that there is a shortage of surrogates in the UK (in comparison to overseas) and many intended parents choosing to go through the surrogacy process in the UK do end up having a long-term relationship with the surrogate.

But while international arrangements can seem more appealing to prospective parents, a whole host of problems can arise once the child is born. The position under UK law is that even if the intended parents appear on the local birth certificate, the surrogate will still be the legal parent until a parental order is obtained. Without legal parenthood, intended parents do not have the legal authority to bring a child back to the UK without the surrogate’s consent. This in turn, can cause many issues regarding immigration status, nationality and visas. Even if the intended parents appear on the local birth certificate, a baby born to a foreign national surrogate mother who is married will not be eligible for British nationality. This can lead to delays in bringing a child home particularly if the nationality of the surrogate mother is such that a visa is needed to enter the UK.

The intersection of UK laws with foreign laws can also leave some children at risk of being made stateless, where the UK recognises the surrogate mother as the legal parent and the foreign state does not. Perhaps, most distressing of all, where relationships between surrogates and intended parents do break down, intended parents and surrogates can be left in prolonged and expensive litigation to try and bring the child back to their country. 

Potential change ahead - The Law Commission’s proposals

Fortunately, it appears that change is on the horizon. The Law Commission has recently published a paper setting out its provisional proposals to reform surrogacy law. Some of these proposals include: a new additional pathway to legal parenthood (ie. to allow intended parents to be recognised as the legal parents from birth, subject to the surrogate’s right to object during a defined period), no requirement for a genetic link between the intended parents and the child, reform of the existing parental order route (and therefore, removal of the six-month time limit for applications) and payments for surrogacy (to allow surrogates to enforce payments due to them under a surrogacy agreement, but for all other purposes for the agreement to remain unenforceable).

The future of surrogacy – ethics and the law

Whatever the outcome of the Law Commission’s consultation paper, it is clear that surrogacy law is in need of change. In part, this is because contemporary attitudes towards surrogacy have changed so much since the 1980s when the existing surrogacy laws were introduced. At the time, people were primarily concerned about vulnerable women being driven by financial need to give up their babies, and about wealthier couples participating in the purchase of children. Some of these concerns undoubtedly still hold true – overseas surrogacy is almost always commercial and places like Thailand, Nepal and Mexico have banned foreigners from accessing surrogacy in order to protect vulnerable women there. Domestically, it has also had an impact on the adoption rate, leaving greater numbers of children in care, and the commercialisation of surrogacy may fundamentally alter its accessibility.

Currently, charitable non-profit organisations are linking up potential parents and surrogates  for free, and surrogates are currently encouraged to participate on the basis of altruism; in a world where corporations can charge for this service, the more likely it is that surrogacy might become the province of the wealthy; less about the medical need for surrogacy services and more about surrogacy for ‘social’ or ‘aesthetic’ reasons.

But the more the surrogacy industry is allowed to grow without regulation, the greater the risk to all involved. The absence of commercial agencies and the outlawing of payments to surrogates does not mean that parties are more well-informed or have a better experience – in many cases it is the opposite.

Ultimately, UK surrogacy law has failed to keep up with the realities of the 21st century. Instead of discouraging people from participating in surrogacy, it has driven people overseas and to the internet for information, to online forums and social media sites rather than medical and legal professionals. Surrogacy no longer has the same stigma attached to it and is increasingly seen as one of the ultimate acts of kindness. The tenor of the law, its focus on non-commercialisation and its parenthood provisions currently models surrogacy not as a form of assisted reproduction but a form of adoption, emphasising the assumption that mothers are giving up babies. This fundamentally fails to reflect the views of the people who engage in surrogacy and the fact that intended parents are also vulnerable people, who have often spent time, money and emotional energy attempting to have children.

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Bryan Cave Leighton Paisner
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