Vardags Family Law Essay competition 2023/24 | Genesis Alejandra Gil Perozo

Genesis Alejandra Gil Perozo - IE University, Spain

Is My Child Mine? Surrogacy in the UK, examining challenges faced by intended parents and the legal uncertainties for those within the country and abroad.

Surrogacy has been on the rise for years as an alternative method for couples who are unable to bear children to make their familial dreams come true; a statement particularly true for rainbow families. According to estimations, as many as 500 children may be born through surrogacy in the UK or to UK parents every year. Nonetheless, legal systems worldwide have failed to meet the requirements of this expansion due to the ethical dilemmas behind it. In the UK, surrogacy is seen as legal only when performed altruistically. Since 1985, legislation on the topic has been regulated by the Surrogacy Arrangements Act. In 2008, certain measures were also adopted via the Human Fertilisation and Embryology Act, which permitted same-sex couples to become the legal parents of surrogacy-born children. Still, critics point to these outdated legislations’ unclarity and lack of guidance as a source of issues for the regulation of surrogacy in the country. One of such issues is the complication posed to intended UK parents who obtain surrogacy overseas when trying to come back home with their child. Conversely, British families who undergo surrogacy in the UK may face legal trouble in the event of relocation to another country. In both scenarios, navigating the legal tribulations is an obstacle for families and lawyers alike, and there are endless legal procedures intended parents have to go through to demonstrate that their surrogate child is truly theirs. Therefore, this essay will explore the implications of current surrogacy legislation for UK nationals through an analysis of current obstacles and guidelines, as well as the proposal for reform recently made by the Law Commission of England and Wales and the Scottish law commision.

Data provided by CAFCASS (Child and Family Court Advisory and Support Service) shows that in the year 2020-21, 145 parental orders were granted for England-based surrogacies, while 76 were for the US, 44 for Ukraine, 32 for “other,” and 7 for Canada. This demonstrates that despite the majority of parental orders being granted are destined for UK-based surrogacies, there is a significant amount of surrogacy arrangements taking place abroad. Although it is not an immense number, it is still a significant number of children who are affected by the procedures and regulations posed by the aforementioned legislation. At the core of this legislation is the idea of automatic parenthood. According to the English legal system, surrogate mothers obtain automatic legal parenthood over the children they bear at the moment of their birth; even if previous agreements have been made with the intended family to hand over the child. Since the UK only recognises altruistic surrogacy, any form of signed agreement between the surrogate mother and the intended parents is not legally enforceable in court. Similarly, in the case that the surrogate mother is married, it is her husband - and not the intended father - who obtains legal parenthood over the child. This is only bypassed in case that the surrogate mother’s husband has explicitly demonstrated that he opposed the procedure. In case that the surrogate mother is not married, then the father is considered whoever has donated the sperm for the surrogacy to occur. Due to this interpretation of parenthood, a couple of intended parents who wish to obtain legal rights over their surrogate child needs to file for a parental order, which is a document that waives the surrogate mother’s rights over the child and grants the intended parents with parental rights over him. This document can only be obtained no earlier than six weeks after the child’s birth in an attempt to ensure that the surrogate mother is sure that she wants to hand over the child. In the case of same sex couples, the procedure to obtain a parental order is the same. However, the implications that this document can have in the case of relocation are significantly different than for traditional couples. Evidently, in situations where the surrogate mother refuses to waive rights over the child, legal disputes proceed. Still, even when there are no legal disputes the process of obtaining a parental order may take up to one year, posing a whole set of challenges to the child.

As it has been shown, laws revolving around surrogacy in the UK are complex, which leads intended parents to perceive the procedure as risky and uncertain. The process is thought to be uncertain due to the ambiguity of the laws around the reimbursement of expenses to the surrogate mother, which may later impact the parental order application process. Additionally, the main risk associated with the process is the fact that due to the surrogate mother obtaining legal parenthood over the child at birth, there is a possibility that she may legitimately decide to keep the child as her own.⁴ Both of these factors continue to drive intended parents to seek surrogacy procedures abroad. These are exemplified through a variety of scenarios.

In the first scenario, couples who undergo a surrogacy procedure in the UK face the ambiguity of the concept of “reasonable expenses” when dealing with compensation for the surrogate mother. In English Law, surrogate mothers are to be paid a “reasonable” amount of money to cover pregnancy expenses, but there are no further specifications regarding what is considered reasonable. Therefore, it is the court who ultimately determines if payments have been appropriate. This makes it difficult for families to budget an appropriate amount for the procedure and opens up the possibility for agencies to take advantage of the intended parents. To address some of these issues, the Law Commissions has proposed a new reform that aims to increase local surrogacies by creating incentives and legal protections around the procedure. For instance, the concept of “reasonable expenses” is set to be limited to medical and well-being costs, pregnancy support, and travel. Thus, excluding compensatory payments and legal expenses such as rent. Additionally, the reform aims to provide a regulatory route overseen by non-profit surrogacy organisations and international surrogacy agreements focused on countries where there is a particular risk of the exploitation of women and children. Effects of this reform on local surrogacies are yet to be seen, as an increase in legal protections would also lead to an increase in the legal steps required to undergo the procedure. Similarly, the agreement does not address the issue of allowing signed agreements between intended parents and surrogate mothers to be legally enforceable, which is the primary reason for intended parents to opt for surrogacy overseas.

The second scenario is observed when couples seek surrogate parents abroad, possible since Re X and Y. Although the procedure may be more expensive abroad, it is still an appealing practice for UK couples due to the fact that commercial surrogacy offers more options and legal facilities in other countries (i.e U.S.A or Mexico). Given the lack of solid legal foundations behind the scenario, a child born to a foreign surrogate mother is not automatically considered British. Similarly, even if the country of origin grants the intended parents with legal rights over the child, this is not automatically applicable in the UK. Thus, intended parents are forced to obtain an entry clearance before returning to the UK. Once they are back, they also need to undergo the 1-year long process of obtaining a parental order. When considering the children’s needs, it is important to note that processes such as inheritance, maintenance, and taxation matters, as well as the parents’ ability to act as the legal representatives of the child in issues relating to schooling or health are all delayed due to the complexity and duration of these parental procedures.

When comparing the financial expenses of both scenarios, it is important to emphasise the disparity that exists between local and international surrogacies. Undergoing a surrogacy locally is considerably cheaper than undergoing the procedure abroad. The only expenses that need to be covered locally are reasonable expenses to the surrogate mother and both the legal and consulting fees. Therefore, a big incentive for having a surrogate child locally is already there. Yet, almost half of UK surrogacies continue to take place abroad. The implementation of the previously mentioned reform will surely bring changes to this statistic: will the additional legal protection offer the needed legal clarity for intended parents to seek a surrogate mother in the country? Or will the reform be perceived as an overcomplication of an already tedious process that will make international surrogacies even more appealing due to the lack of legal enforceability of these agreements?

Despite UK-based proposed solutions and legislation, there is still an issue when dealing with countries in which surrogacy is not legal or regulated. For instance, even in the EU where law is highly harmonised, their Member States do not recognize legal parenthood documents arising from a European surrogacy procedure, nor do they recognize parenthood documents legalised by third countries. This means that in the event of family relocation, a UK-issued parental order may not be recognised in EU member States. For example, if a British family tries to move to Spain with their surrogate child, they would not have any form of legal parenthood over the child; only the father may, in case that the surrogate mother in the UK was not married. Nonetheless, the challenges posed by this scenario are even more complicated for same sex families due to the different levels of legal recognition for these couples’ marriages or partnerships in some jurisdictions. In a comparative analysis between parenthood recognition across different jurisdictions, there have been numerous cases exemplifying this scenario. The Petition 1179/2020 submitted by Dan Sobowitz is one of them, as it addresses the cross-border legal recognition of parenthood within a rainbow family context. Sobowitz and his partner are a same-sex couple living in Germany who had two children born through surrogacy in the USA. A US court established the parental rights of the couple, and their names are listed as the sole parents on the children’s birth certificates. Despite successfully obtaining recognition from a French court, the couple is concerned about inconsistent legal recognition of their familial ties within the EU. They argue that the lack of common rules across the EU infringes upon their rights to move and reside freely, to private and family life, and protection from discrimination based on sexual orientation.

This highlights the pressing need to address these concerns and provide concrete solutions for rainbow families, who due to these circumstances, are more vulnerable to abusive and manipulative situations once they are outside UK jurisdiction, particularly in case of parental relationship breakdown. This is shown through Petition 1038/20 submitted NELFA on behalf of a Danish woman named Janet. Janet and her former wife, a Bulgarian national, had a child together, and the Danish birth certificate initially listed both women as mothers. After their divorce, the Bulgarian mother sought a new birth certificate in Bulgaria, which only acknowledged her as the mother, leaving the second parental space blank. Evidently, this left Janet at a disadvantage when trying to reclaim legal parenthood over her child. This case highlights the potential misuse of non-recognition to exclude the non-recognized parent, as it could be the case in a UK same-sex couple where only one of the parents is legally recognized as the father of a surrogate child due to his genetic connection to him. Unmistakably, this plays a fundamental role in the child’s relationship with both parents. These petitions reveal a significant flaw within current legislation, both in the UK and internationally. The primary concern revolves around the potential challenges faced by a surrogate child in leading a normal life, not only during the process of recognizing parenthood but also afterward under the guidance of their intended parents, particularly in the context of relocation. While family law endeavours to prioritise "the best interest of the child," the methods employed to achieve this objective are not clearly delineated. This lack of clarity often results from the overarching public policy perspective, leading to decisions primarily left in the hands of the courts; a complexity illustrated through the previous examples. Courts and legislators are burdened with the challenging responsibility of striking a delicate balance between upholding the morals of the legal system and safeguarding the best interests of the child. This dual commitment, with the primary aim of protection, underscores the intricate nature of decisions surrounding surrogacy laws and legislation.

A potential solution is one being explored by the Hague Conference on Private International Law (HCCH), which involves considering the adoption of a binding convention on legal parentage and a separate optional binding protocol specifically addressing legal parentage resulting from international surrogacy arrangements. If these initiatives move forward, they could offer a resolution to the challenges of non-recognition faced by surrogate children in the UK across various jurisdictions. However, this approach is not hurdle-free, particularly concerning the regulatory frameworks in countries where surrogacy is explicitly prohibited. While easier recognition of legal parentage is beneficial for the child’s protection and well-being, it may encounter resistance due to potential conflicts with public policy in international jurisdictions. The process of contemplating the adoption of these instruments is currently in its preparatory phase, and it may take considerable time before binding instruments are formulated, agreed upon by members, and potentially widely ratified, including by the UK. It is also important to note that the protocol for surrogacy arrangements will be optional, which could leave significant gaps when ratifying the process at an international level and could allow for an imbalance of protection for surrogate-born children.

In conclusion, the rising popularity of surrogacy, especially among couples in rainbow families facing fertility challenges, has underscored the inadequacies of current legislation. Criticised for its ambiguity, the existing legal framework in the UK often leads to disputes and delays in the surrogacy process. Many UK surrogate children are conceived abroad, where more lenient surrogacy laws prevail. While the Law Commissions has proposed reforms to address some issues, the enforceability of agreements between intended parents and surrogate mothers, a pivotal concern pushing UK couples to seek surrogacy abroad, remains unaddressed. At the international level, there is currently no legal instrument addressing cross-border parenthood recognition. The recent reform of the Surrogacy Arrangements Act and other developments do not seem to offer a comprehensive solution to the core problem of non-recognition of parenthood. UK national children born through surrogacy still face challenges in being legally protected in other jurisdictions. The EU grapples with similar issues, recognizing the negative impact on children’s welfare and fundamental rights. The need for further action at both national and international levels is evident, calling for the drafting of a binding legal instrument to address the non-recognition of parenthood in cross-border situations. It is important to mention that the magnitude of this issue is hard to estimate and that the numbers of cross-border families affected by the existing problems had to be estimated based on several assumptions, as there are limited records and studies available on the issue. Nonetheless, in an increasingly globalised world, the aforementioned scenarios speak to the problem of family law as a legal field which is still evolving to find ways of more cohesively reconciling local legislation which global needs. The complexity of current legislation makes the issue a legal labyrinth for intended parents and legal advisors alike, and as the debate around potential reforms and adaptations persist, a question arises: are we effectively advocating for and safeguarding the best interest of these children? Are we also addressing the underlying issues that public policy aims to protect? Or does our reluctance to implement regulation hinder our ability to fulfil these essential responsibilities?

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