Regulation of surrogacy

With news of more arrangements going awry following a surrogacy agreement - this time an ‘unwanted’ twin born to a surrogate in India (in 2012) and allegedly rejected by an Australian couple who said they could not afford to support both children - the issue of lack of regulation of the surrogacy industry has once again come to the fore.

A recent report in the Guardian about surrogacy tourism in Mexico, plus the case of Thai-born baby Gammy, which hit the headlines worldwide, and closer to home the story of a British couple who rejected a twin girl, ‘Amy’, born with congenital myotonic dystrophy to a British surrogate mother, also highlight the need for regulation. How many other tragic cases will come to light before we see change to protect the children and parents involved?

Much of the media coverage of these cases has been replete with misconceptions. It is a widely stated myth, for example, that payments to a surrogate are illegal in the UK. This isn’t true. In fact, the relevant legislation does not prohibit payments from intended parents to a surrogate in the UK, but a third party (for example, an agency) cannot profit from such an arrangement.

In addition, when intended parents come to apply for a Parental Order in the UK (to obtain legal parental status of the surrogate child), they will need to ask the court to authorise any payments made to a surrogate. So, while the level of payments made will be under scrutiny, it is not illegal to pay a surrogate per se.

However, what is indisputable is that currently there is no international regulation of surrogacy, nor international convention dealing with the legal issues involved, leaving children (such as baby Gammy) born of surrogacy arrangements without proper protection or security. 

Intended parents, surrogates and surrogate children have to rely on local surrogacy laws - if there are any - which vary from country to country. As was seen in the Gammy case, there is frequently confusion over what the local law actually says in relation to surrogacy.

Some countries such as Mexico have a very liberal approach. (The Guardian highlighted that Mexico is seeing an upsurge in surrogacy as India and Thailand tighten their laws.) Other countries such as France don’t recognise children who are born via a surrogacy arrangement, often leaving children stateless.

It is therefore no surprise that UK and international surrogacy lawyers are calling for worldwide regulation of the surrogacy industry and an international convention to ensure protection of children born of these arrangements. The Hague conference is working on the issues arising from international surrogacy arrangements but an international convention is likely to be many years off.

The complexities of cross-border surrogacy arise because of the potential number of interested legal systems: where the surrogate lives; where the intended parents live and their citizenship; the country where the birth is taking place and where the surrogacy agreement is entered into.

As a starting point, we urgently need an international code of practice and regulated surrogacy clinics, with fines imposed for contravention.

In the meantime there are three important lessons lawyers can learn from the Gammy case if they are assisting British couples considering surrogacy overseas:

• Make sure you have good lawyers advising your clients in the country where the surrogacy is taking place. Before entering into any agreement, it is essential that both the surrogate and the intended parents are fully aware of their rights and duties under the agreement and the impact of local laws that apply to the agreement.
• Clients should ensure any agreement covers the worst-case scenario. Issues such as downs syndrome and other pregnancy complications should be discussed and agreed well before a contract is signed and provisions made accordingly. 
• Check the enforceability of contracts in the relevant country and whether your clients are able to apply for a court order pre- or post-birth to ensure their legal status.

The legal and ethical issues surrounding surrogacy are complex but governments around the world need to face up to the fact that intended parents are still going ahead, despite the risks, often leaving children without proper protection. Why not start here in the UK? With a 2015 election approaching, it will be interesting to see if any of the UK political parties take up the baton and make any proposals in their forthcoming manifestos.

We may not yet be able to change the world but lawyers can certainly push for a better system here in the UK to allow commercial surrogacy in a properly regulated and safe way. Thousands of British couples are choosing surrogacy to take place in the UK and abroad each year, so why not regulate it properly?

Claire Wood is a family lawyer at Kingsley Napley