Problems arise where the law in the destination country and the law in the parents' home country do not match up over the basic question of who are recognised as the legal parents. In the worst cases, babies are born without any legal parents, left stranded in the wrong country without identity or nationality. These sorts of issues are not uncommon in cross-border surrogacy cases, since what drives prospective parents to go abroad for surrogacy in the first place is the wish to access more liberal surrogacy laws.
Reasons for crossing borders might include escaping a prohibition on surrogacy at home, or accessing a commercial environment which makes surrogate mothers (and egg donors) more readily accessible. But because the parents may have breached the law or public policy at home, they are often denied legal parental status - even if they have a court order or birth certificate in the foreign country confirming their parentage.
From the perspective of the immigration authorities and family courts in the home countries, this creates a real headache. If a country has made a policy decision against surrogacy (or against commercial surrogacy), granting exceptions and solutions to those who evade the law by going abroad runs the risk of undermining the wider policy and encourages others to follow suit. However, the reality is that public policy collides uncomfortably with the need in practice to protect a vulnerable child who has already been born.
This is not just a problem for the UK. In a recently reported French case, twin children born through surrogacy to a French couple in the US were denied French citizenship. Similarly a German couple were recently denied a German passport for their child born through surrogacy in India.
The UK's High Court Family Division, with its paramount focus on protecting the welfare of children, has been less intransigent, and there is a growing history of legal decisions which have retrospectively authorised foreign surrogacy arrangements.
The first case of this kind in 2008 involved a British couple whose surrogate twins were born 'stateless and parentless' in the Ukraine because of the conflict between UK and Ukrainian law: Ukrainian law said that the British couple were the parents, and British law said that the Ukrainian surrogate and her husband were the parents. The court ultimately sanctioned the commercial Ukrainian arrangement (an arrangement which would not have been legally possible to set up in the UK), awarding parenthood to the British parents. There have subsequently been three further reported cases in the High Court (and other applications granted without the decisions being made public) involving similar decisions.
The big problem is payments. UK law seeks to discourage payments for surrogacy, and the court is therefore struggling with the question of what it should do where parents enter into surrogacy arrangements outside the UK legal framework, and then retrospectively seek the approval of the court.
To be clear, it is not a question of the parents having broken the law. Payments for surrogacy are not (and never have been) illegal in the UK, since a deliberate decision was made when the law was put into place not to criminalise parents or surrogate mothers for making or receiving payments. What is illegal in the UK is for a third party to be paid to broker a surrogacy agreement, a rule which does not (and could not) extend to agencies outside the UK. Ultimately, it is therefore entirely legal for prospective parents to engage foreign professional surrogacy agencies to help them.
When granting a parental order (which secures the status of a family unit created through surrogacy) the UK courts also have an explicit power to 'authorise' a payment of more than expenses to a surrogate mother at their discretion. The intent of the law is clearly to make this the exception rather than the rule, and to encourage altruistic surrogacy as the norm. However, the growth of cross border surrogacy is requiring these exceptional powers to be exercised more regularly.
Ultimately, it is positive that there is a legal solution in the UK for children caught in these difficult legal conflicts, and it is critical that this remains the case. Any attempt to tighten up the rules to enforce restrictions on payments more thoroughly will make things worse for innocent children, who in international situations may be put at serious risk.
What we need is better information about the perils of international surrogacy, and ultimately a move towards a more open, honest and straightforward legal solution in the UK (bearing in mind that payments for 'expenses' in the UK are often not in practice much different in scale from payments typical for 'commercial' US surrogacy arrangements).
Many parents still enter into foreign surrogacy arrangements without being aware of the potential legal complications and then find themselves stranded abroad facing a legal process which is much more complicated than they had anticipated. Others know of the difficulties and some choose not to engage with the UK legal system at all (which is practically possible in certain scenarios, depending on the immigration position) thereby leaving their family's status entirely unsecured. Either way, children are being put at risk and this is something we have a duty to take very seriously.