Surrogacy, as a route to parenthood, is a topic that sparks discussion and publicity around the globe.
Attitudes towards and the laws regulating surrogacy arrangements differ enormously from country to country. There are many countries that do not allow surrogacy and those that criminalise it. In other countries, surrogacy is permitted and can operate within a legislative framework, giving all parties a degree of certainty around arrangements.
Surrogacy in the UK
In the UK, commercial surrogacy is strictly prohibited. Surrogacy can only take place on an altruistic basis. This allows a surrogate to receive only necessary expenses and not to receive payment in exchange for carrying a child. This is contrary to many other countries, most notably certain states within the USA, in which commercial surrogacy arrangements are permitted.
Such varying approaches to surrogacy, can often lead to those choosing this route to parenthood to look abroad. Common countries of choice are the USA, Georgia and, prior to the war, Ukraine. More recently, UK agencies are establishing bases in Mexico.
CAFCASS figures, published in 2022, highlight that over half of surrogacy arrangements entered into by those in the UK are done so abroad. This is despite surrogacy being permitted here and being regulated by a legislative framework.
The risks of international surrogacy
In looking abroad, intended parents should take into consideration the risks posed to themselves, the surrogate and the child. It is important to bear in mind that they will often have to navigate two legal systems.
The recent English decision in the case of A & B v X & Z tells a cautionary tale and provides invaluable guidance to those intending to embark on surrogacy arrangements abroad. It sets out 16 key issues parents should consider before embarking upon a surrogacy arrangement abroad.
The case involved a same sex couple living in the UK, who contacted a surrogacy agency based in Cyprus. The agency produced a contract for them to sign. It then transpired the surrogacy agency was not based in Cyprus, but in a country that did not permit same sex surrogacy arrangements.
The agency suggested that the contract should be signed by only one of them, as a single man, to avoid any issues. The contract was signed by one of them and they opted for a package that guaranteed they would become parents.
The embryo transfer took place successfully in Cyprus. However, the surrogate lived in the country in which the agency was based and spent her pregnancy there.
A further contract was signed by the surrogate and one of the intended parents, again on advice from the agency. This contract provided that the child would be born in an EU country but did not specify which country this would be. Such wording left the couple with little certainty over where their child would be born.
Shortly before the birth, the agency told the couple that the child could not be born in the country in which the surrogate lived. The child could be born in Cyprus, or another suggested country. They chose the other country, as it had an embassy that would allow the couple to obtain a passport for the child.
The child was born and the birth was registered by the surrogate and one of the intended parents. It was not known by the surrogate until after the birth that the intended parents were in a same sex relationship.
In order that the child could obtain a passport, the child was then taken by the couple to the country in which one of the parents was born. By the time the child was permitted to enter the UK, it resulted in the couple applying for a parental order later than the 6 month time limit imposed by UK law.
Fortunately for the intended parents, Mrs Justice Theis, granted them a parental order, but not before subjecting them to some criticism for their "lack of due diligence" throughout the process.
The surrogacy arrangement in this case, had spanned 5 different jurisdictions, (Cyprus; the country the surrogate was from; the birth country of the child; the country in which the passport was obtained; and the UK). Three of these countries did not allow same sex surrogacy arrangements and the couple were aware of this.
Key legal considerations for international surrogacy arrangements
As a result of this judgment, parents now have a helpful list of things to consider before entering into a surrogacy arrangement abroad.
Importantly, intended parents should be familiar with the legal framework(s) of any country to be involved at any stage of the process and what the status of the intended parents will be when the child is born. The intended parents should understand the intricacies of any contract signed and whether the jurisdiction the child is to be born in can be subject to change at any time. They should also consider what nationality the child will acquire at birth and whether immigration advice will be required to have the child brought to the UK.
At the heart of this case is a warning that intended parents in the UK should take early legal advice before entering into a surrogacy arrangement overseas. The decision to become a parent is one of life's most significant and carefully considered and well-informed surrogacy arrangements can provide intended parents with peace of mind.
At Brodies, our family law team can provide expert legal advice on surrogacy. Should you wish some advice, please do not hesitate to get in touch.
Contributor
Senior Solicitor
