A British couple this week won custody over a pair of twins born to a surrogate mother in the Ukraine. The twin babies were caught in a legal loophole whereby the expectant British couple were unable to bring the twins into the UK, as they were not recognised by English law as the parents. Simultaneously, the Ukrainian biological mother no longer had any responsible for, or even rights over, the children under Ukrainian law as this (in contrast to UK legislation) gives binding effect to surrogacy arrangements. Consequently, had the British couple failed to gain the 'parental order' for custody of the children, the twins would have been returned to the Ukraine and placed in an orphanage.

The situation arose as a result of the couple being unable to find a surrogate mother in the UK, where it is illegal to pay a woman more than her expenses in a surrogacy arrangement, were advised to look abroad to a more permissive jurisdiction, and subsequently employed the services of a commercial surrogacy organisation in the Ukraine for a fee of around £23,000. However, as the surrogate mother was married, the UK father, who supplied the sperm, is not considered to be the father under UK law (specifically s.28 of the Human Fertilisation and Embryology Act 1990) and thus was unable to bring the children to the UK after birth. Though the Home Office gave special leave for the children to enter the country pending the High Court ruling, had the application for custody failed. The peculiar legal effect of the disparity between the two legal systems is that the children had, until the date of the court order, no legal parents and no nationality.

The case highlights the ongoing problems surrounding the legal status of surrogacy in the UK. Mr Justice Hedley, in his judgement on the case, stated that 'surrogacy remains an ethically controversial area' and that international surrogacy arrangements raise potentially difficult problems of a kind not experienced with domestic agreements. However at present it is impossible to enforce a surrogacy arrangement in the UK and the couple's solicitor, Natalie Gamble, stated that the UK surrogacy law requires urgent updating to reflect the realities of modern fertility practices and that currently it provides inadequate protection to vulnerable children. This view was reflected in the court's judgment, which noted the case 'highlighted the wisdom' of a review to surrogacy law (as proposed during the debates on the Human Fertilisation and Embryology Act 2008, earlier this year) and expressing a hope that the problems experienced by the couple 'may alert others to the difficulties inherent in this journey'.