The Right Foot

Following the birth of her first child via an Indian surrogacy arrangement in 2015, British citizen Anna Buxton was looking forward to introducing her daughter to family and friends.

The meeting, however, would have to wait, while the British government granted the child a UK passport. To stay with their baby, Buxton and her partner would need to remain in Delhi, conducting their jobs remotely.

International surrogacy has become increasingly popular since Buxton went through the process. A joint study by UK agency My Surrogacy Journey and the University of Kent found that the number of parental orders – where legal parenthood (and in turn parental responsibility) is transferred from a surrogate and her husband/civil partner (as relevant) to the intended parent(s) – granted rose from 117 in 2011 to 413 in 2020.

Part of the increase is down to people choosing to have children later, but cultural attitudes towards what the ‘traditional family’ looks like are also changing, leading to an increase in surrogacy and adoption among same-sex couples and single parents. But growing awareness of surrogacy has also encouraged heterosexual couples to see it as a good way of building a family if, for example, they decided to start their family later in life or they have encountered fertility issues. Buxton adds: “It’s a lifeline for people who can’t start biological families. Cancer is one of hundreds of things that impacts fertility and it gives sufferers the chance to start their own family.”

All-inclusive?

The complexity and costs involved though raise questions about whether surrogacy is open to everyone.

Going through the process in the US, where the first surrogacy clinics were established in the 1980s, will cost a minimum of $150,000 when compensation for the egg donor, surrogate mother and legal fees, among other costs, are factored in and it is possible for surrogacy agencies to operate on a commercial (rather than non-profit basis). Even for high net worth individuals, the cost of international surrogacy is an important consideration.

Less expensive destinations had included Thailand but commercial surrogacy was banned in 2015 after a series of scandals revealed that lax regulation was putting mothers and babies at risk. Ukraine was another popular destination for commercial surrogacy, but the recent outbreak of war left thousands of intended parents unable to be united with their babies who were trapped in the country with their surrogate mothers.

To square international surrogacy with the duty to protect parents, surrogate mothers and babies, the laws that govern the process need simplifying and wherever possible to be applied uniformly across different jurisdictions.

Much of the complexity is borne out of the interaction of different attitudes to surrogacy. The discrepancy between states in their recognition of intended parents as legal parents is only part of the picture.

Another legal quagmire arises for internationally based intended parents obtaining the status of legal parents while living in the UK. “One of the criteria for obtaining a parental order in the UK is that at least one of the intended parents must be domiciled in the country,” explains Emma Willing, Partner in the family team at Penningtons Manches Cooper.

“If, for example, you were a couple or individual from Switzerland, France or Germany, living in the UK for work purposes but not considered domiciled here, it would not be possible to obtain status as the child’s legal parents in England by applying for a parental order and other routes to legal parentage would need to be considered. The concept of domicile is a complicated one and relates to where an individual considers their permanent home to be, rather than the country in which they are currently living. It is a concept which in itself will be carefully scrutinised by the English Court when a Parental Order application is made.”

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“Intended parents and lawyers alike need to be mindful that circumstances can change during the process and the potential impact of those changes on the parental order application.”

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The earlier someone seeks advice, the easier it is to guide them through these issues, explains Hazar El-Chamaa, Partner in Penningtons Manches Cooper’s immigration team. “We would advise British clients to consider choosing an unmarried surrogate in the US, for example, because UK law considers the gestational carrier’s husband to be the father. This is the type of thing that can impact on entitlement to British citizenship among other things.”

Reform on the way

Fortunately, reform is on the horizon. The Law Commission of England and Wales conducted a consultation in relation to proposed surrogacy reform in the hopes of simplifying the process and improving the legal framework, including some aspects of international surrogacy. It published its final report alongside a draft Bill on 29 March 2023.

The report addresses how the current laws are no longer fit for purpose and proposes a new system, which will offer greater protection and certainty to intended parents, surrogates and ultimately the resulting child. The key proposal is the development of a new ‘pathway to parenthood’. If followed, it will enable intended parents to be recognised as the child’s legal parents from birth and to be named on the first birth certificate. The new pathway will be overseen by new non-profitmaking surrogacy organisations, which will be called ‘regulated surrogacy organisations’.

While the report may not go as far as some hoped, the opportunity for comprehensive reform in this area should not be ignored, in contrast to the piecemeal approach through case law over the past few decades.

“Intended parents and lawyers alike need to be mindful that circumstances can change during the process and the potential impact of those changes on the parental order application,” explains Linzi Bull, Partner in the family law team at Penningtons Manches Cooper. She has acted in cases where couples have separated midway through the surrogate’s pregnancy and others where one intended parent was accused of domestic violence by the other.

“The current law could have meant that the parental order applications failed in those cases, causing a huge amount of stress for the families involved,” she adds. “In fact, both applications were ultimately successful but policymakers should focus on creating legislation that not only fills the current gaps in the law but also simplifies the process.”

Efforts to reach international consensus on recognition of legal parentage across jurisdictions are also under way. The Hague Conference on Private International Law is currently examining the possibility of an international protocol on legal parentage in international surrogacy arrangements – the current lack of uniformity can impact on a child’s nationality, immigration status and the attribution of financial and parental responsibility for a child.

“Considering the immigration law element is essential,” adds El-Chamaa, who has had clients approach her who are unable to travel home with their child because their country-of origin doesn’t legally recognise their parenthood and so the child cannot even obtain a travel document. “These situations carry a huge financial cost so, until the law changes, the best approach is to seek advice and avoid them.”

Reform is widely considered to be good news, but the Law Commission’s proposed surrogacy law changes, for example, have already taken more than half a decade. This suggests cultural forces are reshaping the modern family faster than the law can adapt to it.

The fault line between law and reality threatens the security of families around the world. To continue allowing people the freedom to build a family and for those wishing to help them do so, the law needs to change and it needs to change now.

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