Hague Convention to regulate international surrogacy?

September 24, 2013

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

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