UK parents expecting four 'twiblings' through surrogacy in India

The BBC has reported a surrogacy case (‘The couple having four babies through two surrogates’) involving a British couple who are anticipating the birth of four babies through surrogacy - two sets of twins being carried simultaneously by two Indian surrogate mothers.  Natalie was interviewed for the piece, by Poonam Taneja, and comments on our experience on the ground and what these arrangements are being called:

“Lawyer Natalie Gamble confirms there are similar cases but she believes it is a trend which is largely unique to the sub-continent. “We’ve seen it a few times. I wouldn’t say it’s routine but it’s not massively uncommon in India,” she says. In fact there is even a new term coined for these babies – twiblings. “They’re not quite twins and not quite siblings either,” she says.

It is indeed not the first time we have seen twiblings result from surrogacy in India - the use of more than one surrogate at the same time is an option presented to many of our clients going to India.  Embryos are created (either using the couple’s own gametes, or with the help of a donor) and then transferred into several surrogate mothers at the same time with a view to maximising the chance of a successful pregnancy.  If both surrogates get pregnant, the babies may be born at slightly different times, even though they were conceived as twins.

We understand that parents who have had long and difficult journeys are desperate to achieve a pregnancy, and that many do think through carefully the consequences of having many children at once.  But where multiple embryos are transferred, there can be significant risks involved for the parents, the babies and the surrogate mothers, and those involved may not be given enough information about the risks before they make a decision about how to proceed.  Indian surrogate twiblings is the product of an unregulated system and a world away from the strictly controlled fertility treatment which takes place under HFEA regulation in the UK, where there are strict controls on how many embryos can be transferred in order to avoid multiple pregnancies, and rigorous measures in place to make sure everyone involved gets the right information and gives full informed consent.  It is something parents should bear in mind before they embark on surrogacy in India.

There is more information on our website about international surrogacy law and immigration.

International surrogacy - UK High Court judge parenthood to non-British dads

The decision in Re A & B (Parental Order: Domicile) represents another landmark ruling for NGA – a parental order having been granted to a non-British gay couple following the birth of their son through Indian surrogacy last year.

The case not only clarifies the law for foreign but UK-resident parents conceiving through surrogacy, but also shows how same sex parents are being drawn to the UK’s open culture and law. We were proud to have supported the parents in this case through to successful conclusion, and once again to have helped make new law.

What happened?
The parents, who are American and Polish respectively, moved to the UK as a couple in 2008 (having registered their domestic partnership in California four years earlier). They were initially attracted to the UK by our unrivalled equal laws and gay rights – something they were not afforded in their respective home counties. Having decided to start a family, they found a surrogate through an agency in India and were delighted when their son was born in 2012. On their return to the UK they sought help from NGA to establish the non-biological dad’s parental status, which led to their application for a parental order (the legal solution following surrogacy, enabling both intended parents to become their child’s legal parents under UK law).

What does the law say?
In order to be eligible for a parental order, at least one of the intended parents must demonstrate to the court’s satisfaction that they are ‘domiciled’ in a part of the UK. Domicile for these purposes is more complex than simply where a person lives – it comes down to where their permanent roots and allegiances lie. This particular criterion (one of a number of strict requirements attached to the parental order) is designed to prevent foreign parents ‘forum shopping’, by using the UK court to grant them a more favourable legal solution than their own country might. The parents in this case therefore had to show that they had made the UK their permanent home and that, notwithstanding their American and Polish citizenship status, they had cut their ties with the US and Poland and did not intend to return.

What did the court consider?
In order to establish whether the parents in this case had met this high bar, the judge considered a number of factors in detail. She was particularly assisted by the parents’ statements, which outlined in detail their connections here (including that they ran a UK based company and both intended to apply for British citizenship at the earliest opportunity) and their affection for the UK including their very personal reasons for making it their home and the place that they raise their family, away from the discrimination abundant in their home countries. The judge went on to quote one of their reasons for not returning to the US, “We will never return and raise our son in a society in which schools may censor him from talking about his family”, as a factor which bolstered their contentions.

Why is this case significant?
Mrs Justice Theis reiterated in this case the importance, for non-British parents applying for a parental order, of demonstrating a clear intention to make the UK their permanent home – the court otherwise being powerless to make a parental order. The judge was also assisted by an independent investigation of the circumstances surrounding domicile by CAFCASS Legal, who found that the parents had abandoned their respective domicile of origins in favour of English domiciles of choice. This case (in addition to Z v C [2011]) provides helpful guidance for future non-British parents through surrogacy who hope to apply for a parental order.

What you need to know if you are not British, or are British and based abroad, and considering applying for a parental order
Domicile is a far-reaching principle of law and far from contingent on just one factor. Having dealt with the key cases which have tested the law on this, we would be happy to advise you on your eligibility to apply for a parental order, no matter what your circumstances. You can contact us here, or alternatively there is more information about domicile on our website.