A surrogacy industry has grown rapidly in India over the past few years, attracting Western intended parents with limited surrogacy options at home. Although the Indian parliament is considering introducing Indian surrogacy laws (one feature of the proposed Bill being to restrict surrogacy for foreign parents), there is widespread doubt about when or if these laws will ever be passed. With no law to regulate Indian surrogacy as things stand, a profitable surrogacy market has sprung up. Clinics rely on Indian contract law to draw up binding agreements between surrogates and intended parents, and registrars facilitate naming intended parents on Indian birth certificates. All together, it adds up to an affordable but unregulated way of having a child for infertile and gay couples.
But Indian surrogacy is not as simple as it seems for British intended parents. UK law says that the surrogate is the mother of the child and, if she is married, her husband is the father, and these rules apply no matter where in the world the child is conceived. In practice this means that getting named on an Indian birth certificate is false comfort, since the Indian birth certificate will not be recognised for any UK legal purposes.
Getting home is just the first hurdle. Most children born to British parents through surrogacy in India are born 'stateless' – they have no nationality anywhere in the world – because of the mismatched laws on parenthood. British parents have to apply to the Home Office for their child to be registered as a British citizen on a discretionary basis. Since the process takes many months, parents must routinely be prepared for a long stay in a foreign country with their newborn child.
Parents also have to apply to the family court in the UK within six months of the birth for a 'parental order' – this makes them their child's legal parents for UK law purposes, extinguishes the status of the surrogate, and gives them a British birth certificate. Indian surrogacy arrangements inevitably involve a payment to the surrogate of more than her expenses (3-4 years' normal wages is typical), and this means that the parents have to ask the UK court's special permission to 'authorise' the payments retrospectively. Since this challenges UK policy against payments for surrogacy, every case goes to the High Court to be scrutinised carefully by a senior judge.
This has been a fast evolving area of case law in the High Court over the past few years. In 2008, the High Court for the very first time ratified a foreign commercial surrogacy arrangement in the case of Re X and Y (foreign surrogacy) in 2008 (1). The case involved a Ukrainian surrogacy arrangement in which the British parents of twins born 'stateless and parentless' in the Ukraine were awarded a parental order to secure their children's status because, the court said, the parents had behaved responsibly. The next landmark was in 2010 in the case of Re L (a child) (a case involving a child born to British intended parents through surrogacy in Illinois) in which the High Court established the important principle that the child's welfare was its 'paramount consideration' (2). The court said that, unless a foreign surrogacy case was one of the clearest abuse of public policy, a parental order would always be granted.
What this means in practice is that parents who embark on foreign surrogacy arrangements can now be confident that (unless the circumstances are very unusual) they will ultimately be able to become the legal parents of their child. But the process is rigorous and the High Court continues to examine every application carefully - particularly so in Indian cases. We have dealt with many Indian surrogacy cases, and see in practice the High Court's meticulous approach to confirming the surrogate's full consent in the context of language barriers and sometimes illiteracy, and ensuring there has been no exploitation in the absence of law and regulation.
Perhaps one of the most worrying features of the Indian surrogacy phenomenon is the UK parents who do not apply to court. Armed with an Indian birth certificate and a British passport, many avoid the rigours of the High Court, keep their heads down and hope for the best. Dealing with the law can be daunting, but not doing so means that their child remains legally the child of the Indian surrogate mother and her husband, and not theirs. The full fallout of these problems has yet to come, but come it will, since a lack of parentage has all sorts of real implications in practice, from liability for child support on relationship breakdown, to authority for giving medical consent, to inheritance rights, to involvement of social services. The worst thing is that UK law only gives a six month window of opportunity within which parents can apply for a parental order – if parents do not apply before their child is six months old, they lose the chance forever.
What is the answer to all these problems? In a modern globalised world, we need to be realistic. It is thanks to our family court judges that our surrogacy laws have adapted to be as child-focused as they are, but we need to do more. Yes, we should do all we can to encourage responsible surrogacy practice (of which altruistic surrogacy may be the gold standard), but not at the expense of prioritising the welfare of real children being born through surrogacy under other legal frameworks. We need to make parents legally responsible for the children they bring into the world, give them proper maternity leave rights to care for their children, and ensure that children are not stranded abroad and left vulnerable for any longer than absolutely necessary.
If we are concerned about the perils and ethics of cross border surrogacy, the answer is for us to look again at how surrogacy works in the UK, because – let's be clear about this – our current laws are responsible for driving UK demand for Indian surrogacy. UK law makes it deliberately hard for parents to find a surrogate in the UK, and creates a regulatory vacuum in which intended parents have to fend for themselves with no guidance on which surrogacy services being offered in the UK and abroad are safe and reputable. In the 1980s it was hoped that these restrictive surrogacy laws would make surrogacy 'wither on the vine', but given today's global surrogacy market that no longer seems a realistic objective. The truth is that all our surrogacy laws achieve today is forcing parents to look abroad, and that few parents would choose to spend six months waiting for a passport in India if there were a good safe alternative at home. It's time we had proper regulation of surrogacy in the UK and laws which really do protect the welfare of children born through surrogacy, both in the UK and in India.