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International surrogacy and the law

Emily jackson
Making babies in the 21st Century
The law covering international surrogacy differs worldwide. So, for example, in the UK it is certainly not illegal to go overseas in order to employ a surrogate even in a commercial surrogacy arrangement. And the child can be brought back to the UK, though, that is not necessarily always hugely straight forward but the foreign office has developed guidance to enable that to happen. And when the parents return they can apply for a parental order for that child. And the court is able then to retrospectively authorize payments that were made overseas. So it is possible for people in the UK to travel overseas to have babies I that way.
There are countries where it is actually a criminal offence for citizens to travel overseas for contract pregnancy. For example, in New South Wales and Australia, it is a criminal offence to enter into commercial surrogacy, including overseas. So if a couple from New South Wales were to travel to India, for example or to the United States for a commercial surrogacy arrangement they would be committing a criminal offence at home. So there’s a range of ways in which countries respond to surrogacy. India of course is responding to it by trying to amend an almost complete ban on foreigners accessing surrogacy.
Of course that means that people will then potentially travel somewhere else and the United States is obviously one of the most welcoming countries for people who want to travel for surrogacy because commercial surrogacy is very well established there. It is difficult to see how you could stop people doing this. People self-refer, they travel overseas, they have a baby and in a sense their home country is then prevented with a fait accompli. There is a child whose best interests then become the most important consideration. And that may mean that the child’s best interest is to live with the intending parents. The surrogate will probably not want the child.
So I think it is very hard to prevent international surrogacy and I think perhaps what we should concentrate on instead is some sort of minimum standard to make sure that the sorts of arrangements one hears about in which the surrogate didn’t understand the contracts or the contract wasn’t in a language she was even able to understand, are outlawed as far as that is possible. One hears about cases overseas in which the surrogate has been implanted with multiple embryos, which wouldn’t happen here, maybe four embryos which is hugely dangerous to her health. And we should really be focusing on making sure that the women in a surrogate arrangement is as safe as possible. Surrogacy is lawful in the UK.
And people do enter into surrogacy arrangements, people are paid expenses and the court can retrospectively authorize some sums of money, which are slightly beyond, expenses. it is thought that it’s, the range of money which women are paid for acting as surrogates in the UK, ranges between nothing when people do it entirely without charging to around ten or fifteen thousand pounds which is considerably less than in the United States. The surrogate generally will hand over the baby at birth, and on the whole these arrangements work well.
The parental order can be granted which makes the intending parents’ the child’s legal parents and all of the evidence that we have suggests that although it is not a common way to have babies, disputes are really very rare. And in most cases there is ongoing contact between the surrogate and the and the family and the that the arrangements generally work well. Obviously that is not universally true but any arrangement can go wrong. In the US surrogacy is a commercial business. There are agencies and there are brokers. Surrogates can make quite a lot of money and it is quite expensive but it works again quite smoothly.
and couples from the UK travel there in order to access the greater range of surrogacy services that are available. In the UK anybody can make a surrogacy arrangement. Access to parental orders which is a bit like a sort of fast track adoption, the transfer of legal parenthood from the surrogate mother to the intending parents that is open to any couple. So a heterosexual couple can apply for a parental order but so can a same sex couple. It is not open currently to single people. So a single man who employed a surrogate mother he could do that in the UK, that wouldn’t be unlawful but he wouldn’t be eligible for a parental order.
When people don’t apply for parental orders or are not eligible for them, there are other mechanisms that the courts use in order in a sense, to protect the best interests of the child and protect the security of the relationship between the parent and the child. So adoption is obviously an option. And then the court has in some cases used other techniques like residence orders in order to give the person with whom the child is living parental responsibility for that child. So, there are a range of ways that the family courts use in order to protect the best interests of the children born through these arrangements that people make.

Different legal frameworks are involved in cross-border surrogacy, so trying to untangle the legal obligations of each party can be tricky.

For example, while U.K. permits only altruistic surrogacy, British intended parents can travel abroad for surrogacy and apply for a legal parental order when they return to their home country. However, in New South Wales it is a criminal offence to enter into commercial surrogacy, including overseas. She further describes how countries in the global south either have recently changed their policies regarding surrogacy.

India has now moved to altruistic surrogacy for Indian infertile couples only. However, U.S.A. still remains as one of the biggest destinations for international commercial surrogacy. She then argues that it is hard to prevent international surrogacy, therefore the focus should rather be on establishing minimum standards for a successful international surrogacy arrangement.

Factors like the surrogate understanding the surrogacy contract and minimising health risks of implanting multiple embryos should be duly considered. She also describes surrogacy arrangement in the U.K and U.S.A in terms of payment to surrogate, contact between intended parents and surrogates, access to surrogacy…etc.

For your discussion: Do you think countries should have a consistent legal framework regarding access to surrogacy domestically and abroad? Do you think unmarried couples should be given access to surrogacy? Do you think rules of a surrogacy arrangement should be ‘dominated’ by the surrogate or the intended parents?

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