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Crossing borders for surrogacy: the problems for families and policymakers

31 May 2011
By Natalie Gamble
Natalie Gamble Associates
Appeared in BioNews 609
More people are crossing borders to build their families than ever before. Prospective parents can easily access information about treatment options in countries where regulations permit treatments outlawed in the UK or where there is little or no regulation at all. But where surrogacy is involved, going abroad raises very difficult legal issues.

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.

7 January 2019 - by Suzi Denton 
A Canadian man whose twin girls were born via gestational surrogacy in Kenya is currently unable to bring his children home due to Canadian citizenship laws...
17 December 2018 - by Georgia Everett 
A new study into the experience of British families who undertaking surrogacy arrangements has shed light on the reasons some seek a surrogate in the UK while others choose to go abroad...
3 September 2018 - by Sarah Pritchard 
Nearly 30 Spanish families are unable to leave Ukraine with their surrogate-born infants, as they are unable to register the births with the Spanish Consular Civil Registry of the Spanish Embassy in Kiev...
8 June 2015 - by Michael Wells-Greco 
On 21 May 2015 the Swiss Federal Court refused to register a male couple - who are in a civil partnership and living in Saint-Gallen, Switzerland - as the legal fathers of a child born following an inter-country surrogacy arrangement...
6 June 2012 - by Jessica Ware 
Around half of the 2,000 babies born to surrogate mothers in India last year may have gone to British parents, an investigation by the Sunday Telegraph has revealed....
I am all for surrogate motherhood, I believe that if someone wants to help another have a child it is a wonderful thing. ( - 14/10/2014)
Good day! I want to say that only people who know this problem firsthand can tell real opinion. Never people who have children can understand infertile couples. Only imagine that all your children disappeared and you never had them and will never have. You think that you will be frightened and disappoint… Yes… But multiple all you feelings by thousand. Infertile women cannon feel themselves normal. It’s like you are half a woman. I overcame so many troubles using surrogacy. I thought I didn’t have enough forces to go through all those tests in my life. But for sure I will never say that surrogacy should be banned or this option shouldn’t exist. Because it was my only option to become a mother and feel all the pleasures of caring a baby. I just can tell you that in some countries it should be restricted to avoid many problems. I am sorry for my long story, but I guess this information can be useful for infertile couples. And maybe people who are against surrogacy will understand us more… When I was 28 years old I went through a serious surgery during which doctors had to dissect my ovarium out. Medical workers warned me of the consequences in future, in particular infertility. I had no choice in the matter because we did not think about fertility at that moment but how to save my life. Being 30 years old my husband and I gave thought to child. Having known my diagnosis we understood that I can bear a child only with the help of donor eggs and IVF program. Therefore, we gave a second thought to reproductive medical programs, studied all information and chose the country where we can take advantage of ART. India is one of the well postered among such countries. Price for donation program is rather handsome in addition we wanted to see tourist India. So my husband and I packed our bags and flew to South Asia. We chose reproductive medicine clinic that is in Anand city. There we were met by a friendly, pleasant woman – clinic director Nyah Patel. She told us that all their donors are faith worthy – none of them smoke, drink alcohol or take drugs.
Medical program takes place under doctors’ control and in accordance with all norms. Be that as it may, but all donors there are of Hindu race. We have nothing against people of other nationalities but still we wanted child to be like us, as far as possible in this case. We have taken note of the Indian clinic and decided to look for another one. Spain, clinic in Barcelona was a second enter we opted for. Visiting Spanish center we were impressed with the high level of organization and services quality. Having got to know all programs’ proposals and conditions we signed the contract. After medical examinations (tests, ultrasound and semen analysis) we have chosen a suitable donor and began stimulation. I took hormonal drugs during more than a month. Program was conducted with the use of frozen oocytes. Embryo transfer did not last long but was rather painful. Unfortunately, the result was negative – I was not pregnant. Doctors explained that it happens so because not all are lucky to become pregnant on the first try. As a result, they twisted our arm and we agreed for another two IVF attempts in their clinic.
It should be noted that during this time we have spent a lot of money. We had to pay separately for each IVF attempt. In addition, expenses for accommodation, meal, transfer, some medicines and flight was also shouldered as a burden. But it is not the most important thing, because our dream was so long-awaited child. After three attempts in Spain we have not reached our goal. After we came back home we talked to those who also went through donation program. In addition we studied information about eggs cryopreservation and realized that the problem was just in freeze. Process of cryopreservation of genetic material adversely affects its quality that’s why very often the result is negative. Having already some experience and being taught from own mistakes we continued our search for the ideal clinic. Russia was our next attempt to find happiness. In the Russian Federation doctors use fresh eggs and argue that ” you will not go back home without successful pregnancy”. Russia was a distant and unknown country for us – rumors of its underdevelopment and poor service walked over Internet networks and forums nevertheless we decided to take a chance. Level of service fades in comparison with possible parenthood. Having arrived in St. Petersburg, reproductive medicine clinic, we did not see high European standards but it was quite good. Our doctor, obstetrician-gynecologist Stambulova Olga, listened to our history, studied all medical records, conducted a number of tests and said: “Do not worry my dear, we will try our best and everything will be ok!” We man up, psyched us up for success and started new treatment in Russia. Egg donor and I were stimulated in order to synchronize our menstrual cycles. Again and again I took hormonal drugs, felt bad but had a firm belief in good result. After embryos transfer my husband prayed with bated breath. But … that attempt was not successful as well. We were a bit disappointed and downhearted. All these torments, clinics in different countries and numerous failed attempts had been lasting for ten years. During this time I had took an incredible amount of hormonal medicines, went through a lot of medical tests and, frankly speaking, I was tired mentally and physically. And one day we saw an advertising of reproductive medicine clinic BioTexCom. Centre offered unimaginable conditions and 100% guarantee of success. Medical package includes meeting at the airport, transfer, accommodation, meal and medical program with a certain number of attempts. All these are included in a fixed sum for the program. We paid not a penny more. Weighing all the “pros” and “cons” my husband said me: “I love you and want to raise our own children. So I’m with you and together we will go through all difficulties”. So we went to Ukrainian capital, Kiev. Center for human reproduction BioTexCom. We felt that everything will turn out good just having left the airport. We were met by a clinic’s driver –friendly, polite man stood with a sign where our surname was written. He helped us with the luggage and conducted to the car. When he brought us to the clinic a pretty lady met us on the doorstep – she charted with us before our arrival and was our manager-translator during the program. She led us to the clinic, offered coffee and we got to know each other better. She spoke English very well and we had no problems communicating. Then we visited a doctor, Elena Mozgova. She talked to us and conducted ultrasound investigation. The doctor told me that they conduct programs using exclusively fresh oocytes, apply best practices and have a high deliverable She added that we were not the first ones in BioTexCom clinic who came after unsuccessful attempts made abroad. Further there were a standard procedure of stimulation, which I already knew by heart and embryo transfer. In Ukraine, during preparation for the program, I took such medicines as Progesterone, Oksiprogesteron, Proginova, Utrozhestan and various vitamin complexes. It is important to take into account the fact that all medicines were given to me in the clinic and I did not pay extra for them. In BioTexCom center doctors calculate the perfect day for transferring and use the highest quality biological material. Well, let alone all these details, as result tells louder than words – after the first attempt I finally got pregnant! We were as happy as a pig in mud! We could hardly believe that our dream came true – I was pregnant and we were waiting for our long-awaited child. I will not go into details concerning the level of services and country as a whole. Yes, Ukraine is not a country with European level, but people there are very kind and friendly. And doctors of BioTexCom are really professionals and sometimes work wonders using modern technologies and unique techniques.
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