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Surrogacy: National Approaches and International Regulation

Michael Edwards, Barrister, 4 Paper Buildings, and Colin Rogerson, Solicitor, Dawson Cornwell, report on the proceedings at the Workshop on National Approaches to Surrogacy, University of Aberdeen between 30 August 2011 and 1 September 2011

Michael Edwards, Barrister, 4 Paper Buildings

Colin Rogerson, Solicitor, Dawson Corwell 

Michael Edwards
, Barrister, 4 Paper Buildings and Colin Rogerson, Solicitor, Dawson Corwell

Surrogacy has developed over the last decade from a little-known curiosity to a real alternative for couples unable to have children by other means. International surrogacy in particular is on the rise as a result of couples taking advantage of more liberal fertility laws and less stringent regulation. California, India and the Ukraine have quickly developed into global centres for intending parents seeking surrogates. Other states are now trying to get in on the act; for example, Uganda's approach to surrogacy is so liberal that it makes California look like a police state.

Despite the growth in international surrogacy, there remains no international regulation of surrogacy or minimum standards to which states must adhere.  Moreover, there are no international conventions, or reciprocal arrangements for the recognition of the legal parentage of a child.  Thus, a parental order obtained, for instance, in California will not be recognised in England. The issue is now firmly on the agenda of The Hague Conference on Private International Law and the intention is to develop a convention along the lines of the Child Abduction Convention and the International Adoption Convention.

The University of Aberdeen has been given a grant by the Nuffield Foundation to look into the development of a convention on international surrogacy. Although separate to The Hague Conference, the work being carried out in Aberdeen is intended to give an academic perspective on this issue, which will then feed into the negotiations which will take place in drawing up a convention. The Conference held on 30 September to 1 September 2011 was an important part of this process, bringing together academics, practitioners from around the world and representatives of The Hague Conference to discuss the way forward.

The national approaches to surrogacy are disparate and broadly fall into three categories:

(i) Countries which are anti-surrogacy;
(ii) Countries where surrogacy is unregulated;
(iii) Countries which are neutral or permissive.

Anti-surrogacy countries
The big players in this category are France, Germany and several US states, including New York and New Jersey.

In France, Article 17/6 of the Civil Code makes void any agreement with a third party relating to procreation or gestation. In the recent Mennesson case the highest court in France, the Cour de Cassation, ruled that that it was contrary to public policy to give effect to foreign surrogacy agreements. An appeal is currently being prepared by the intending parents to the European Court of Human Rights.

Surrogacy is similarly prohibited in Germany. The German courts have held that surrogacy is a breach of Article 1 of the Constitution, which states that human dignity is inviolable. To make a human being the subject of a contract is impermissible under German law, as is the use of a third party's body for the purposes of reproduction. The strict definition of motherhood under the German Civil Code also makes surrogacy arrangements unworkable.

China also takes an anti-surrogacy approach. Under an 'Administrative Rule' issued by the Ministry of Public Health in 2001, all forms of surrogacy whether commercial or altruistic are void and unenforceable. The Rule also bans all forms of trade in fertilized eggs and embryos.   

These restrictive approaches to surrogacy have not entirely closed off demand for such arrangements however. The issue of parentage usually arises at the point at which the 'parents' attempt to register their child as their own or to acquire travel documents. Anecdotal evidence indicates that the tough line taken by some states simply encourages otherwise law abiding citizens to lie about the status of the child.

It is also clear that states which are ostensibly restrictive may be pushed towards liberalising their approach in certain circumstances. In the US, the 'full faith and credit' doctrine provides that States will recognise judgments made in other US States as long as certain basic standards have been met in reaching that decision. This has led to surrogacy arrangements being recognised in States which, under their own state law, prohibit such arrangements. In France, the Conseil d'Etat, the highest administrative court, recently provided an administrative means of recognising foreign surrogacy agreements by overturning a decision of the French Consulate in India not to issue travel documents. The Conseil d'Etat has no jurisdiction over matters of parentage but nevertheless made an order which effectively made lawful a surrogacy agreement entered into overseas.  

Countries where surrogacy is unregulated
Many countries have not yet fully come to terms with the concept of international surrogacy and how to deal with it. Surrogacy is generally dealt with in these states on a case by case basis.

The Republic of Ireland provides an interesting example of a state edging towards a coherent position on international surrogacy, without having made it there yet. Surrogacy forms part of a wider debate in Ireland about the family and artificial reproduction. As the law currently stands, the gestational mother is treated as the legal mother and has a constitutional right to guardianship and custody of the child. Cases such as McD v L [2009] IESC 81, however, indicate that a more flexible approach may come to be adopted. The Irish Supreme Court held in that case that a sperm donor who wanted to play a role in parenting should be granted some parental rights. 

Other countries represented at the Aberdeen Conference which do not currently regulate surrogacy include Belgium, the Netherlands, the Czech Republic, Hungary and Romania. While countries such as Ireland may well move towards a more permissive approach, within a regulated framework, other states may take more persuasion. In the Netherlands, for instance, although surrogacy is not illegal in itself, entering or attempting to enter a surrogacy arrangement is illegal and can be punished with imprisonment. The popular image of the Netherlands as a liberal bastion does not as yet extend to its approach to surrogacy. 

Countries which are neutral or permissive
The UK falls within this category, together with other Commonwealth countries such as Australia, India, South Africa and New Zealand.

The UK's approach seeks to deter intending parents from entering into commercial surrogacy arrangements.  It is unlawful for intending parents to advertise for a surrogate, or for a woman to advertise a willingness to become a surrogate.  The Surrogacy Arrangements Act 1985 s.2(1) prevents a third party (though not a surrogate or intending parents) from initiating or taking part in negotiations, offering or agreeing to negotiate, or compiling any information with a view to its use in making, or negotiating the making of, surrogacy arrangements. Strict regulation means that surrogacy agencies based in the United Kingdom operate as not for profit organisations. 

Since the Human Fertilisation and Embryology Act 1990 came into force, intending parents have been able to acquire legal parenthood of their child to the exclusion of the surrogate (and, if applicable, her husband) by a parental order.  The criteria for a parental order are now contained in section 54 of the Human Fertilisation and Embryology Act 2008.  A parental order will be granted by the English courts provided that the criteria set out in section 54 are met and it is in the child's best interests to make the order. Although the Act provides that no more than 'reasonable expenses' should be paid to the surrogate, the English courts have retrospectively approved surrogacy payments made overseas which go beyond reasonable expenses.

California has quickly become known as a centre for international surrogacy. The starting point was the case of Johnson v Calvert [1993] 5 Cal. 4th 84, 851 P.2d 776 in which the Californian Supreme Court made a number of important points which paved the way towards California's current position:

(i) A gestational mother cannot renege on the surrogacy agreement, provided that agreement was fairly and properly reached; 

(ii) Economic necessity is a reality for many of the women who become surrogate mothers – but this does not make surrogacy arrangements invalid, it is simply a reflection of the reality of the situation;

(iii) Surrogacy does not turn children into commodities, despite the fact that they are effectively the subject of a contract.

In addition, some jurisdictions (including California) allow intending parents to make an application for a parental order before the child has been born. The intending parents are therefore the legal parents of the child as soon as the child is born. Intending parents can be attracted by this because of the concern of the surrogate changing her mind post-birth.  American lawyers warn that there could be medical insurance cover implications in the case of pre-birth orders which could add significant cost to an already expensive process.  

Similar principles govern surrogacy in India and Ukraine, two jurisdictions which often attract intending parents without the funds to travel to California. In India the names of the intending parents will automatically appear on the child's birth certificate, without the need for a parental order. There is no legislation which specifically allows commercial surrogacy, but it has been clearly established by the Indian Supreme Court that commercial surrogacy is lawful. Legislation to codify the current permissive practice is being planned.

In Ukraine commercial surrogacy is lawful under the country's robust freedom of contract laws, set out in the Civil Code. As in India, the process of the intending parents' names appearing on the child's birth certificate is automatic without the need for a parental order. Ukraine does impose the additional requirement that there must be two intending parents rather than a single parent.

Surrogacy and international adoption
There are some obvious similarities between international surrogacy and international adoption. Both are means of satisfying the parental desire to have a family but both are also capable of abuse. The desire for international conventions in both areas has been driven by a growing awareness of the possible abuses. These shared aims and underpinnings have led some, including the convenors of the Aberdeen Conference, to advocate using the 1993 Hague Convention on Inter-country Adoption as a model for the proposed surrogacy convention.

This view was not shared by all of the representatives at the Conference however. Hannah Baker of The Hague Conference on Private International Law set out some of the distinctions between adoption and surrogacy: 

That said, as Ms Baker set out at the Conference, there are lessons which can be learned from the Adoption Convention: 

The way forward 
The Aberdeen Conference made plain the differences between the approaches to surrogacy between the states represented. Though these may appear unbridgeable, the intention is to work towards a set of fundamental principles which states can all agree should govern international surrogacy. These principles will not of course mean that states hostile to surrogacy will suddenly liberalise their approach, but they will reflect the reality that international surrogacy arrangements are taking place and need to be regulated.

The Conference concluded with a discussion about what those fundamental principles underpinning a convention in this area might be. The 'best interests of the child' is the obvious starting point and is unlikely to cause too much dissent. Another principle may well be that one of the intending parents has a biological link to the child. Safeguarding mechanisms would also have to be put in place, in particular Central Authorities and a system of accreditation of bodies involved in surrogacy.

Whether or not commercial surrogacy should be allowed may prove a more difficult issue on which to reach agreement. The suggestion from the representatives of Aberdeen University is that the convention would allow altruistic surrogacy, generously defined to allow payments within defined limits. Commercial surrogacy arrangements would then depend on bilateral agreements between states. This would allow countries such as Germany to join the convention, despite its vehement opposition to commercial surrogacy as a breach of human dignity. Some more liberal states, however, may struggle with a convention which is silent on commercial surrogacy.

The Conference was an important coming together of academic voices on surrogacy, alongside practitioners and representatives of The Hague Conference. It is ultimately in The Hague where the negotiations between states parties will take place and the details of the proposed convention will be developed. The wide variation in approaches and attitudes is reminiscent of the debates which preceded the other Hague Conventions which have now, barring the 1996 Convention, become well-established. It is hoped that the differing positions can be bridged to bring regulation to this fast-emerging area.