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UK legal system may impact decision to go abroad for surrogacy

17 December 2018
Appeared in BioNews 980

A new study into the experience of British families undertaking surrogacy arrangements has shed light on the reasons some seek a surrogate in the UK while others choose to go abroad.

The research published this week in Human Fertility sought to identify problems within current UK surrogacy laws, and to find out why many families opt to pursue surrogacy arrangements outside the UK. 

'UK surrogacy law is outdated and struggling to cope with the strain of modern surrogacy experience both in the UK and globally' said Natalie Gamble, co-author of the study and founder of NGA Law and Brilliant Beginnings.

Dr Vasanti Jadva at the Centre for Family Research, University of Cambridge, surveyed 203 subjects who were either planning to pursue surrogacy, engaged in a surrogacy arrangement or are already parents via surrogacy. The participants answered questions about where their surrogacy took place (or will take place) and why they chose that location, why they rejected other locations, what advice or counselling they sought, and what payments were made to the surrogate, as well as experiences of bringing their child home and obtaining a parental order. 

Among families who preferred a UK surrogacy arrangement, 42 percent cited their desire to form a close and lasting relationship with the surrogate. Reasons why families decided against pursuing surrogacy in the UK were often related to legal uncertainties, especially the fact that surrogacy contracts are unenforceable and that a parental order cannot be granted until at least six weeks after the birth (until then, the surrogate is the legal mother of the child). 

Almost all the families who chose a US surrogate said that the legal system was an important factor in their decision. Because many US states permit commercial surrogacy it can be easier to find a surrogate there, and intended parents can be recognised as legal parents of the child from birth. This makes it easier for parents to obtain a passport to bring their baby back to the UK, however, the costs are prohibitive for many families. 

Some families considered countries with lower-cost arrangements including India, Thailand, Ukraine and Georgia, although the researchers found that parents whose children were born in these jurisdictions were more likely to experience delays and difficulties obtaining the legal documents required to bring the child back to the UK. 

The authors stress that even if the intended parents are considered the legal parents in the country where the child is born, the woman who gave birth is still the legal mother in UK law until a parental order is granted. Some of the surveyed families had not obtained parental orders for children born overseas, and the authors warn that this can have potentially serious consequences requiring the intervention of the family court at a later date.

The Law Commission of England and Wales and the Scottish Law Commission are working together to review the UK's surrogacy laws and bring them into line with modern attitudes to family (see BioNews 948). 

Cross-border and domestic surrogacy in the UK context: an exploration of practical and legal decision-making
Human Fertility |  11 December 2018
Legal system may lead many UK parents abroad to find a surrogate
MedicalXpress |  13 December 2018
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