The case hit the headlines after twins, biologically the children of a British father and an anonymous egg donor and carried by a Ukrainian surrogate mother, were left parentless and stateless by a conflict between English and Ukrainian law. The British commissioning parents were not treated as the twins' parents under English law, despite the British father's biological paternity. The twins could have faced a childhood in a Ukrainian orphanage if the High Court had not made a groundbreaking decision to authorise the payment of £23,000 made to the surrogate mother.
The issues in the case go to the very core of society's attitude to fertility treatment and highlight the problems with the current constraints on surrogacy in the UK, particularly in the wake of increasing permissiveness of commercial surrogacy in foreign jurisdictions. The landmark legal judgment has ramifications for all those involved in fertility practice, including patients, their legal advisers, clinicians and the Human Fertilisation and Embryology Authority (HFEA).
The case follows hard on the heels of recent parliamentary debates on the Human Fertilisation and Embryology Act 2008. The government indicated in those debates that it was minded to review the law and regulation of surrogacy, but it fell short of tackling the issue head-on. This was a lost opportunity to overhaul the inherent problems and inconsistencies with English surrogacy law.
The case of Re X and Y highlights quite how significant this omission was. The risk of many more couples ending up in a similar nightmare is worrying. More British couples are travelling abroad for treatment, for reasons including the acute shortage of egg donors in the UK and restrictions on commercially-arranged surrogacy which make it difficult to find a suitable surrogate mother in the UK. Mr Justice Hedley acknowledged this trend, saying 'more and more couples are likely to be tempted to follow the applicants' path to commercial surrogacy in those places where it is lawful'.
The problem is that many foreign systems of law take a very different approach to surrogacy, so that children are born following arrangements which would not be permitted in the UK. In Re X & Y, the British couple had paid the surrogate mother €27,000 (£23,000), far more than the 'reasonable expenses' permitted under UK law. The High Court's decision to authorise the payments was a watershed, but the court made it clear that the UK maintains a public policy against commercial surrogacy and that every case will be decided on its own facts. Other British couples who conceive through foreign surrogacy can therefore expect to face a similar legal battle to the parents in Re X and Y.
Of equal concern, Mr Justice Hedley acknowledged that the British couple in Re X and Y had made diligent enquiries about parenting options and made what they felt was an informed decision about entering into a surrogacy arrangement in the Ukraine. He commented that none of the legal difficulties the couple experienced were 'foreshadowed in any of the extensive enquiries they had made before leaving this country, whether on Home Office websites or the information given by the bodies who advised them in the United Kingdom or the information given to them in and through the Ukrainian Hospital'. There is currently a dire lack of good quality information about the legal treatment of international surrogacy arrangements, Mr Justice Hedley commenting that 'the quality of information currently available is variable and may, in what it omits, actually be misleading'.
Fertility practitioners and regulatory bodies beware. Following Re X and Y, relevant professionals (and regulatory bodies) in the UK will be expected to provide patients with much better information about the legal complications of foreign surrogacy. Re X and Y highlights quite how dangerous it can be for patients (and perhaps their doctors) to focus exclusively on the goal of conceiving and to give too little thought to the legal consequences that may follow after their long-awaited child is born.
Surrogacy remains a sensitive and difficult subject and there needs to be greater awareness of the complex legal issues. Those working with fertility patients can also play their part for a better future by increasing pressure for a review of surrogacy law in the UK.