Health professionals and surrogacy agencies – last chance to contribute to Hague Conference’s work on surrogacy

We recently wrote for our blog about our evidence to the Hague Conference about whether international surrogacy should be regulated globally.  The Hague has now asked us to help them make a final appeal for information, targeting health professionals and surrogacy agencies across the world.  Here is their message:

The Hague Conference on Private International Law is currently seeking responses to two online Questionnaires on surrogacy. The deadlines for both have been extended to 8 November 2013:

• Health Professionals with experience in the field of assisted reproductive technology (ART), particularly those with experience of cross-border cases and international surrogacy arrangements.  Click here to answer Questionnaire No 3 (Health Professionals).

• Surrogacy Agencies i.e. anyone who provides intermediary services in relation to international surrogacy arrangements. Click here to answer Questionnaire No 4 (Surrogacy Agencies).

The Hague Conference on Private International Law is a global inter-governmental organisation with 75 Members (74 countries and the European Union) which works to develop and service international treaties, including in the area of international child protection. The organisation is currently looking into the issues which may arise for children as a result of differing laws in countries concerning who are their legal parents. One area where this has become a particular problem is in the field of international surrogacy arrangements.

The responses to the two online Questionnaires will inform the writing of a report requested by Members of the Hague Conference on the topic of parentage / surrogacy and will facilitate Members’ consideration of whether the development of a new international treaty (i.e. a new Hague Convention) might be desirable and feasible. A new international treaty might include, for example, rules to ensure that the legal parentage of a child, established in one country, is recognised in all other countries which join the treaty. Such a treaty might also facilitate co-operation between countries concerning these matters and might set down minimum safeguards which must be complied with.

These questionnaires provide an important opportunity for those with relevant experience in this field to have their voice heard and to inform future work at the international level.

For more information see www.hcch.net/index_en.php?act=text.display&tid=183.  For further information or word versions of the questionnaires, contact secretariat@hcch.net (Laura Martinez-Mora and Hannah Baker).  If you are not a Health Professional or Surrogacy Agency but have relevant experience in this field to share, please let us know.

Hague Convention to regulate international surrogacy?

The Hague Conference on Private International Law is considering a new global convention on international surrogacy. This follows previous international Hague Conventions regulating inter-country adoption and international child abduction, and marks a response to the blossoming of global surrogacy over the last five years.

To help the Hague with its investigations, experienced surrogacy law practitioners from across the globe (including Natalie Gamble Associates) have been asked to give evidence to give a picture of what is actually happening on the ground, and the problems arising in practice.  Submissions are due by 30 September.

Our experience

Our evidence to the Hague paints an interesting picture of the cross-border surrogacy arrangements being entered into by UK parents (both those living in Britain and abroad).  Over the past four years, we have worked with 227 families in cross-border surrogacy cases, covering children born in 19 different countries to married and unmarried heterosexual parents, same sex parents, and single mums and dads. Most have been commercially arranged gestational surrogacy arrangements (the majority involving donated eggs), but there has also been a significant minority of family arrangements, including some traditional surrogacy cases where the surrogate is the biological mother. The costs for parents have ranged from a few hundred pounds up to hundreds of thousands of dollars. The most popular surrogacy destination countries for UK parents are the USA, India and the Ukraine.  It will be interesting to see how this experience compares with surrogacy lawyers from other countries.

All the international surrogacy cases we have dealt with have involved conflict of law problems, since the very first international surrogacy case in which Ukrainian-born twins were famously declared ‘stateless and parentless’ by the UK High Court in 2008 (because Ukrainian law said our clients were the legal parents, and UK law said the Ukrainian surrogate and her husband were the legal parents).  Since then, we have worked with 45 further families to obtain parental orders to resolve similar problems following international surrogacy arrangements (including our six further published cases which have made new law) with other parents representing themselves and more cases currently in the pipeline.  Parents will be reassured to know that we have not seen any parental order applications refused, or any children ultimately denied entry to the UK.

But five years down the line from that first landmark Ukrainian case, UK families continue to be stuck abroad for a significant period of time after the birth and to face a long and often complex UK court process. Some of the families we have advised have not been eligible to apply for a parental order (or have chosen not to do so) which means they are caring for their children without secure legal status, something which concerns us greatly.

Our view on what the Hague should do

The focus of any international regulation should be to recognise the right people as the legal parents internationally, so that children can be brought home promptly after the birth by the parents who conceived them, and no children are left in an unresolved legal position.

The Hague should also seek to ensure the quality of intermediaries (surrogacy agencies and clinics) to ensure that surrogate mothers and parents are fully informed, protected and supported.  This will create the strongest platform for protecting the welfare of yet-to-be conceived children, and reduce the risk of exploitation of surrogate mothers and intended parents, particularly in third world countries like India.  The issue of payments to surrogate mothers should be considered in the context of ensuring that surrogates give full and informed consent.

Onerous vetting of intended parents should be avoided. Surrogacy is a form of reproduction, and it would be entirely inappropriate to require parents seeking to conceive their own children to follow the procedures used to approve inter-country adopters. Particular care should also be taken to protect the human rights of non-traditional families (such as single and same sex parents). Research evidence shows that it is the quality of parenting which matters for child welfare, rather than the family form, and so any regulation of international surrogacy should be neutral, and should not be used to apply moral positions concerning who should and should not become a parent.

We know from long experience how resolute intended parents are in their longing to have a family.  They are prepared to grapple with significant legal and logistical challenges (and in some countries even criminal restrictions) to conceive through international surrogacy. It is therefore important that any international regulation of surrogacy is pragmatic.  Rather than fruitlessly seeking to curb surrogacy generally, any new convention should instead focus on creating a workable international system for surrogacy which protects all involved, and particularly the children.

What happens next?

The Hague is just in the early stages of gathering information, and it is likely to be years before any new convention comes into force.  However, this is important work and it is critical that those who have real experience of surrogacy get involved and help shape any future regulation as the discussion proceeds.  We will stay closely involved and keep you updated with developments.

In the meantime, the deadline for submissions from legal practitioners is 30 September.  If you are a lawyer with experience in international surrogacy, we would urge you to complete a questionnaire and have your say http://www.hcch.net/limesurvey/index.php/519183/lang-en

There is more information about international surrogacy law on our website, and you can read our publishedinternational surrogacy judgments here.

Helen speaks at ESHRE about overseas surrogacy - law and ethics

In the run up to the European Society for Human Reproduction and Embryology’s Annual Conference, the British Infertility Counselling Association and the International Infertility Counselling Organisation gathered a group of international clinicians and counsellors, in the first meeting of its kind, to discuss the challenges as ART goes global.  Helen was delighted to speak at the conference workshop (at the ExCel Centre in London on July 6^th) about overseas surrogacy.

Helen’s talk and further discussions highlighted the diverseness of legal and ethical issues when dealing with surrogacy across the world.  Without any global harmonisation, those working with commissioning parents find that dealing with surrogacy is at best cumbersome and at worst a criminal offence, with some exceptionally stringent consequences for counsellors or anyone involved in surrogacy.  The UK is at the liberal end from a European perspective, unlike Germany and Italy where surrogacy is not permitted, but it still has some way to go to be being a surrogacy destination like the US.  The overwhelming consensus is that surrogacy is here to stay and is a global family building option – where people cannot find a solution in their own country, they will go abroad.  The dilemma that counsellors and legal teams across the world have is how to give support and advice responsibly to ensure that the families created are fully protected.

What NGA would like to see in the UK is a more streamlined approach.  Surrogacy is a collaborative arrangement and everyone’s role needs to be appropriately respected.  We should have contracts at the outset, because they encourage everyone to enter into a complex situation on a fully informed basis, and with the benefit of proper support and guidance.  Where all goes well, the agreement should be honoured so that the parents can, by agreement, become legal parents immediately.  But where there are difficulties for any reason, there should be a mechanism for dealing with them sensitively, weighing up the interests of everyone involved, including the child.

Other speakers included Diana Guerra-Diaz, head of Psychology Unit in IVI Barcelona and on the Catalan Committee on Human Reproduction, Jennie Hunt, Senior Infertility Counsellor at IVF Hammersmith, Uschi Van den Broeak talking on the attitudes and motivations for semen donors as well as Laura Witjens, Chair of the National Gamete Donation Trust.  The audience included attendees from across the globe including South Africa, Argentina, USA, Belgium, France, Israel, Ireland, Spain, The Netherlands, Portugal, Australia, Greece, Germany and across the UK and Northern Ireland.

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

Surrogacy overseas: new immigration guidance for UK parents

The Foreign and Commonwealth Office has published updated guidance on the immigration procedures for UK parents who have children born through surrogacy abroad.  The rules have not been changed, but they are now set out much more clearly than before.  The new guidance also contains helpful practical information about what documents need to be included in applications.

If a child is born through surrogacy abroad, UK law applies its own rules on parentage irrespective of the legal position in the birth country.  The rules trip up many parents since, even if their child’s foreign birth certificate or court order records them as the legal parents, the child will not automatically be entitled to a British passport.  British nationality law treats the surrogate (and if she is married her husband) as the legal parents – irrespective of biology.  The child may therefore inherit British nationality from his or her parents, but may not, depending on the circumstances.  If the child is not British, there are discretionary procedures to follow to get the documentation needed to bring the child into the UK (to have the child registered as a British citizen, or to obtain an entry clearance visa).  The new guidance sets out these procedures much more clearly.

These rules apply to children born through surrogacy anywhere in the world, most commonly India, the Ukraine and the USA.  Typically the fastest route home to the UK is from the USA (although to avoid breaching immigration control parents need more than a US passport to travel).

There is more information about international surrogacy law on our website, or you can contact us for advice on your personal situation.  We are the UK’s most experienced surrogacy lawyers, having dealt with virtually all the international surrogacy cases which have made the law in the UK, including the very first.  We have also long campaigned for better immigration laws for surrogacy, helping create the policy which has allowed entry clearance to be given on a discretionary basis, and in 2010 winning a change to the legislation which allows British nationality to be conferred automatically on children awarded a parental order.