Pressure for a review of surrogacy law is mounting in legal, media and
political quarters following the case of Re X & Y (Foreign Surrogacy) 2008.
The case - the first to test thelaw for British couples going abroad for surrogacy
- has highlighted the complexity and confusion surrounding surrogacy law in the UK.
The case hit the headlines after twins, biologically the children of a
British father and an anonymous egg donor and carried by a Ukrainian
surrogate mother, were left parentless and stateless by a conflict between
English and Ukrainian law. The British commissioning parents were not
treated as the twins' parents under English law, despite the British
father's biological paternity. The twins could have faced a childhood in a
Ukrainian orphanage if the High Court had not made a groundbreaking decision
to authorise the payment of £23,000 made to the surrogate mother.
The issues in the case go to the very core of society's attitude to
fertility treatment and highlight the problems with the current constraints
on surrogacy in the UK, particularly in the wake of increasing
permissiveness of commercial surrogacy in foreign jurisdictions. The
landmark legal judgment has ramifications for all those involved in
fertility practice, including patients, their legal advisers, clinicians and
the HFEA.
The case follows hard on the heels of recent parliamentary debates on
the Human Fertilisation and Embryology Act 2008. The government indicated in
those debates that it was minded to review the law and regulation of
surrogacy, but it fell short of tackling the issue head-on. This was a lost
opportunity to overhaul the inherent problems and inconsistencies with
English surrogacy law.
The case of Re X and Y highlights quite how significant this omission
was. The risk of many more couples ending up in a similar nightmare is
worrying. More British couples are travelling abroad for treatment, for
reasons including the acute shortage of egg donors in the UK and
restrictions on commercially-arranged surrogacy which make it difficult to
find a suitable surrogate mother in the UK. Mr Justice Hedley acknowledged
this trend, saying 'more and more couples are likely to be tempted to follow
the applicants' path to commercial surrogacy in those places where it is
lawful'.
The problem is that many foreign systems of law take a very different
approach to surrogacy, so that children are born following arrangements
which would not be permitted in the UK. In Re X & Y, the British couple had
paid the surrogate mother 27,000 Euros (£23,000), far more than the
'reasonable expenses' permitted under UK law. The High Court's decision to
authorise the payments was a watershed, but the court made it clear that the
UK maintains a public policy against commercial surrogacy and that every
case will be decided on its own facts. Other British couples who conceive
through foreign surrogacy can therefore expect to face a similar legal
battle to the parents in Re X and Y.
Of equal concern, Mr Justice Hedley acknowledged that the British couple
in Re X and Y had made diligent enquiries about parenting options and made
what they felt was an informed decision about entering into a surrogacy
arrangement in the Ukraine. He commented that none of the legal difficulties
the couple experienced were 'foreshadowed in any of the extensive enquiries
they had made before leaving this country, whether on Home Office websites
or the information given by the bodies who advised them in the United
Kingdom or the information given to them in and through the Ukrainian
Hospital'. There is currently a dire lack of good quality information about
the legal treatment of international surrogacy arrangements, Mr Justice
Hedley commenting that 'the quality of information currently available is
variable and may, in what it omits, actually be misleading'.
Fertility practitioners and regulatory bodies beware. Following Re X
and Y, relevant professionals (and regulatory bodies) in the UK will be
expected to provide patients with much better information about the legal
complications of foreign surrogacy. Re X and Y highlights quite how
dangerous it can be for patients (and perhaps their doctors) to focus
exclusively on the goal of conceiving and to give too little thought to the
legal consequences that may follow after their long-awaited child is born.
Surrogacy remains a sensitive and difficult subject and there needs to
be greater awareness of the complex legal issues. Those working with
fertility patients can also play their part for a better future by
increasing pressure for a review of surrogacy law in the UK.
- By Louisa Ghevaert, Associate Solicitor at Lester Aldridge LLP. Louisa
works with Natalie Gamble and represented the parents, together with
Natalie, in the Re X and Y case. For further information see
www.lesteraldridge.com/services/private/fertility/index.asp
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