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Surrogacy in the UK vs Surrogacy Abroad – entirely different, or one and the same?

Nicola Scott, fertility lawyer at Porter Dodson LLP, considers those issues that often arise in UK surrogacy arrangements.

Nicola Scott, solicitor, Porter Dodson
















Nicola Scott
, solicitor, Porter Dodson

2015 has already seen a number of surrogacy judgments1 which challenge the law as it currently stands in relation to this increasingly mainstream pathway to parenthood.  However, where the issue at hand is whether a parental order should be made2, the focus historically has been on international arrangements.  Whilst contentious UK surrogacy cases, happily, remain remarkable (and therefore likely published), these and international arrangements overshadow the reality and prevalence of the undisputed UK surrogacy arrangement.  Though uncontentious in nature, such arrangements are commonly peppered with comparable issues to those found in overseas applications, though the latter remain in the realms of the High Court3.  It is not denied that international surrogacy arrangements are naturally hazardous and necessitate a cautious approach at court level, but, as demonstrated below, UK arrangements come with equal risks.

The practice of surrogacy in the UK
Repeatedly overshadowed by uncertainty as to the surrounding legalities, surrogacy is in fact very achievable in the UK and arrangements take place in their hundreds every year.  However, due to the lack of an overtly supportive legal framework, its practice varies widely and the resulting disparity between arrangements can be vast.

Often the best option, for those who have the choice, is to use a surrogate who is a family member or close friend.  Arrangements where trust is implicit invariably make for the most altruistic and straightforward.  For those who need to look elsewhere there are a number of independent organisations which facilitate arrangements between prospective parents and surrogates4, by enabling introductions and supporting the resulting relationships.  However, a growing method of establishing a surrogacy arrangement is to look online.  The increase in social networking has enabled prospective parents to find a willing surrogate (and vice versa) through Facebook groups and online forums, where regulation is scarce and support informal. 

The risks of working with a previously unknown surrogate (or indeed prospective parents) are obvious, but some arrangements forge ahead with a surprising lack of communication to determine the other side's true motivations.  As surrogacy agreements are not legally binding in the UK, there is no obligation or obvious trigger for prospective parents to meet with a lawyer at the outset.  Although it is not possible to draft an agreement on their behalf (this is an offence for professionals5, though something the parties are encouraged to do amongst themselves), a consultation at this stage provides an opportunity to set out the legal position and explain what must be done to reassign parenthood in due course.  Some parents are made aware of this and seek initial advice; others are not and will proceed having had no professional input (sometimes without any written agreement in place at all).  Though not enforceable, parents and surrogates can agree whatever they wish in terms of payments, restrictions and obligations during pregnancy, contact before and after birth and any other matters they consider important. 

There is also a choice of how to conceive.  If no fertility procedure is strictly required6, and particularly if cost is an issue, it is not unusual for conception to take place via artificial insemination at home.  This not only throws up further issues as to the surrogate's investment and attachment to the pregnancy, but by not having treatment at a licensed UK clinic parents and surrogates do not benefit from the built-in counselling and professional support provided before conception.

Oversight of surrogacy in the UK
It is easy to see how the lack of structure and obligatory professional oversight here can lead to a culture of casually-set-up surrogacy arrangements based on hopes of aligned intentions and well-placed faith in the unknown.  In the absence of a robust UK legal system to fall back on, for those arrangements where problems do arise, a lack of guidance and support from experienced professionals can exacerbate matters and put the relationship of the parties under considerable strain.  Even where these issues do not affect the outcome of the arrangement7, they can cause difficulties during the subsequent court process.

The parental order process8 provides the first formal oversight that many arrangements will see, though this comes too late across the board, since there can be no application until the child is born (leaving him or her legally vulnerable for a period of at least several weeks).  It is at this stage that the applicant parents are faced with conforming to the parameters set by section 54 of the Human Fertilisation and Embryology Act 2008; some of whom will not already be familiar with the requirements. 

Whilst applications following UK surrogacy are dealt with relatively straightforwardly in practice, the ambiguous surrogacy backdrop in this country provides the potential for just as many legal quandaries to arise as do so in cross-border surrogacy arrangements.  The difference lies in the level of scrutiny of the two.

Common issues arising following international surrogacy arrangements and how they pertain to UK arrangements
The recent case of R and S v T (Surrogacy: Service, Consent and Payments) [2015] EWFC 22 clearly highlighted the flaws associated with pursuing international surrogacy and retrospectively endeavouring to make it compliant with the parental order criteria.  In this case Mrs Justice Theis was particularly concerned over the issue of:

Payments – including what precisely was paid to the surrogate,

Consent – including whether the surrogate had a complete understanding of the consent papers signed and their wider meaning, and

Service – including whether the requirement to serve within the FPR 2010 could be dispensed with.

Though this case is not remarkable in its facts, nor the issues raised, those without practical experience of domestic surrogacy arrangements may be surprised to learn that the above are not unique to international arrangements.

Payments
Section 54(8) of the Human Fertilisation and Embryology Authority Act 2008
states that payments of no more than expenses reasonably incurred should be paid for a surrogacy arrangement, unless authorised by the court.  We know from the plethora of published judgments that the discretion to authorise is widely exercised to subsequently approve commercial payments (both to surrogates and agencies) in overseas surrogacy arrangements.  Given the delicate balance which must be struck between UK public policy stance on commercial surrogacy9 and a child's need for legal stability (via the parental order), this exercise of discretion is currently reserved for High Court judges.  Re L (A Minor) [2010] EWHC 3146 (Fam) established that a child's welfare is the paramount consideration in applications of this nature and Mr Justice Hedley went further to paint the scope of this paramountcy by stating that unless there was the clearest case of the abuse of public policy, a parental order could not be refused on the grounds of payments made (assuming welfare arguments supported its making).  This approach has subsequently been taken in each comparable application.

Despite this flexibility, UK surrogacy seemingly operates independently and invariably under the guise of 'reasonable expenses only' arrangements.  Some UK arrangements are entirely altruistic with minimal or no payments passing between the intended parents and the surrogate.  However, many arrangements see parents making lump sum payments in the region of £8,000 - £16,000 in addition to a separate allowance for expenses directly to their surrogate10

Unlike within international parental order applications, there appears to be little appetite at local family court level to scrutinise the nature and purpose of the payments made.  The above figures have been routinely accepted by family court judges as representing reasonable expenses over the last few years, with minimal further enquiry as to how the sums paid are broken down and justifiable as expenses.

Some may argue that, by their very level, payments in international arrangements should be scrutinised and, if appropriate, authorised.  However, in practice, the sums paid to foreign surrogates are usually of similar amounts to those paid to UK surrogates.  By way of example, California has a reputation as the most well-established surrogacy destination overseas, by virtue of its openly professional surrogacy industry and robust legal framework.  It is also well known as being the most expensive surrogacy destination.  Yet surrogates there receive on average $25,000 - $35,000 compensation.  At current exchange rates11 this equates to approximately £16,000 - £22,500; directly comparable to the £8,000 - £16,000 (plus expense allowances) commonly paid to UK surrogates.  There is no doubt that such UK arrangements provide the surrogate with more than her out of pocket expenses, a great deal more in many cases12.  The situation remains that similar figures (and sometimes less – if destinations such as the Ukraine, Georgia and India are considered) are subject to close scrutiny and an authorisation exercise in the High Court following international arrangements, where they are almost rubber-stamped as reasonable expenses without the need for authorisation at local family courts following UK arrangements.

Consent
Section 54(6) of the the 2008 Act sets out that the surrogate (and her husband, if she is married) must freely, with full understanding of what is involved, agree unconditionally to the making of the parental order more than six weeks after birth.  There are obvious inherent concerns where foreign surrogates have signed consent paperwork which is not in their native tongue13, particularly if they are then impossible to contact for further clarification.  However, the means of clarifying UK surrogates' consent is not without its flaws.

The standard form A101A used to obtain consent is basic and drafted in such a way that it is presumed the surrogate is a social parent in addition to a legal parent.  Although there are similarities in the function of a parental order to that of an adoption order14, genuine surrogacy arrangements are fundamentally different – the child never having been conceived as a child of the surrogate, nor parented as such.  The form does not go far in terms of informing the signer of the wider meaning of the parental order or indeed to clarify full, free and unconditional consent.  Undoubtedly a clear benefit of UK applications is that CAFCASS (in the form of a parental order reporter) are able to take a more active role in obtaining surrogates' consent15; by visiting them at home and facilitating their understanding of the process in conjunction with obtaining their consent via the A101A. 

The six week 'cooling off' period means that the arrangement has been honoured long before the parental order reporter makes their visit and at a time when the surrogate is settling back into her usual family life.  In addition to consent from the surrogate, it is also necessary to obtain the consent of her husband if she is married16.  This can become an awkward, and often protracted, issue if the couple are separated (though not divorced) and particularly if there is any animosity or difficulty in communication between them – a common scenario.

It is rare for surrogates in the UK to obtain legal advice – either prior to entering an arrangement or in relation to the parental order at a later stage17.  This does not seem to be a concern at court level, due largely to the reliance on the parental order reporter to have made a recommendation for a parental order only if he or she is satisfied of the surrogate's full, free and unconditional consent.  Whether this is a burden beyond the call of CAFCASS is subject to debate.

However, whatever the verdict of CAFCASS, it may be that a UK surrogate has just as basic an understanding or unconcern of the court process as a foreign surrogate.  Though, in the same vein as the issue of payments, this is rarely queried further to determine the extent of consent given or whether it is ongoing. It could be argued that the economic disparity between UK parents and foreign surrogates prompts further enquiry as to a surrogate's true understanding and stance – though US surrogacy arrangements18 are similarly scrutinised.  The question then remains why UK surrogates (or at least their wider position) are not probed further and, if they were, whether their consent would always be deemed full, free and unconditional at first scrutiny using the same factors as those considered in international applications.

Service
The service of parental order application forms, acknowledgment forms and notices of proceedings can prove fiddly even in US surrogacy arrangements where documents do not need to be translated and can be emailed directly to the respondents19.  Following the provision of formal consent, the service and completion of more documents can appear an additional intrusion for surrogates who, by this point, have long fulfilled their side of the agreement.  In some arrangements this proves an impossible task and, fortunately, Mrs Justice Theis has been satisfied that the need to serve can be dispensed with if the circumstances qualify (R and S v T). 

Service in UK applications is dealt with more informally.  The court issue C52 acknowledgment forms, along with the issued C51 application forms, and send these to the applicants who must then forward them to their surrogate to be completed and returned within seven days.  In practice the deadline is not strictly monitored and very often parents are not sent the correct forms, or any forms at all, following issue (with the notice of proceedings usually following at a later date in any case, depending on the court's schedule).  In this event, those who have had the benefit of legal advice may be proactive and find the acknowledgment form online so that they are then able to effect service.  Others may not be aware of the need to serve, or their surrogate may fail to complete and return the paperwork.  This is not detrimental and very often overlooked as part of the proceedings.

The treatment of service as a non-issue in UK parental order applications coupled with the reliance on the CAFCASS officer represents a stark difference from that of international arrangements.  The last two years in particular have seen the High Court family judges concerned to ensure that service on foreign surrogates has taken place and acknowledgment forms completed.  As if providing a second reassurance as to the surrogate's consent, completed service and acknowledgment operates as a vital tool to paint a picture for the judge about the surrogate, aiding the ultimate decision of whether to make the order.  If service has not been effected (as in R and S v T), parents are ordered to take the necessary steps.  Only after all reasonable efforts have been made will dispensation be considered.  Once again, one may query the diverse approach between courts over a factor of equally great importance.  One noticeable variant is the involvement CAFCASS are able to have with surrogates in the UK.  However, if this is the cause for disparity in practice, it could be argued that the role of parental order reporter should be more clearly defined across both types of application.

Conclusion
It is clear that surrogacy arrangements, wherever they take place, are risk-inherent, leading to potentially numerous issues when under the microscope of court proceedings.  What is also obvious is that there is an entirely different approach taken with international parental order applications from that with domestic parental order applications.  The former are scrutinised closely in all their detail – requiring a great deal of evidence to be filed, the latter almost rubber-stamped (subject to a positive CAFCASS report).

In Re L back in 2010 Mr Justice Hedley mulled over whether international parental order applications required a High Court process.  His conclusion was that they did, for at least the following twelve months.  We are now nearly precisely five years on from that judgment with virtually every international surrogacy application still being heard in the High Court (currently by virtue of The Family Court (Composition and Distribution of Business) Rules 2014/840).  The issues surfacing do not appear to be concerning the family judges any less five years on, though a parental order has never been refused20

Parents who pursue domestic arrangements currently enjoy a relatively informal court process with minimal preparation necessary.  It seems fitting that where arrangements sit neatly within the criteria set out in section 54 (for example, altruistic in nature or limited to payments of only defined expenses) there is no scrutiny beyond the scope of a positive CAFCASS assessment, for the issues are contained.  However, where UK arrangements push the boundaries of the current legislation (as most overseas arrangements do), it could be argued that it is only appropriate that these are assessed with a greater degree of scrutiny than the former before a parental order can justifiably be made.

The reality is that the current law is bursting at the seams, and applications have fallen into one of two categories – the tranquil and the gruelling – with no scope for a middle ground.  The last seven years, since Re X & Y [2008] EWHC 3030 (Fam), has seen the judiciary desperately expanding the legislation, on a case by case basis as opportunities arise, so as to ensure vulnerable children are provided a legal solution.  However, there is only so far it can be stretched before its raison d'être becomes obsolete.  A new system, which reflects the reality of surrogacy arrangements in the UK and overseas, is not merely long overdue but absolutely essential to adequately protect children born through surrogacy at the earliest possible opportunity, and offer much needed assurance to the adults involved.  
________________________
Footnotes:

[1] Summarised succinctly by Andrew Powell in Family Law Week here.
[2] Rather than any wider matters of dispute.
[3] By virtue of Schedule 1, 4 (f) of The Family Court (Composition and Distribution of Business) Rules 2014/840
[4] To the extent permitted by law on a non-profit basis.
[5] Under the Surrogacy Arrangements Act 1985.
[6] i.e. the surrogate will conceive with her own eggs.
[7] i.e. the handing over of the baby to the intended parents (something which is invariably honoured).
[8] That which reassigns legal parenthood from the surrogate to the intended parents.
[9] i.e. discouraging.
[10] As well as other associated third party costs, such as fertility treatment fees.
[11] 1.56 dollars to the pound.
[12] Which the author supports.
[13] Or in some cases where they are not literate at all.
[14] In that it extinguishes and reassigns legal parenthood.
[15] As opposed to international arrangements where face to face contact between the surrogate and the parental order reporter is virtually unheard of.
[16] Since he too will be treated as a legal parent.  This is on the basis that he consented to the conception (though, as a question of fact, this cannot be denied if he had knowledge of the arrangement and did nothing to prevent it).
[17] This approach does not cause difficulties, on the basis that their role in the proceedings is minimal.
[18] Where surrogates enjoy a comparable standard of living and opportunities to that of their UK intended parents.
[19] A far cry from the process where a non-English speaking surrogate has been used.
[20] Where the basic criteria are met.

4/8/15