Over the last 12 months, I have watched with interest the fast changing developments in the worldwide surrogacy industry. Thailand has banned commercial surrogacy for foreigners. India has reportedly closed its doors to all but Indian citizens and non- resident Indians. The Guardian reported on 3 January 2016 that the Indian Government had sent notices to fertility clinics ordering them to stop all surrogate embryo transfers for all non- Indian passport holders, which is a devastating blow for those families waiting for their transfers to take place.
I have sympathy for families who have experienced challenges along their surrogacy journey and see first-hand the inadequacies of national and international laws. I feel frustrated that, despite calls for reform from surrogacy practitioners, we have made little progress either regulating the industry overall or reforming the law in England and Wales. On a positive note, we have seen some limited developments which help secure the future of surrogate children and their parents:
- As reported in our blog “The further use of discretion in considering time limits for parental orders”, our family Judges have widened the interpretation of the existing legislation and have granted Parental Orders outside of the statute imposed 6 month deadline. This has greatly assisted parents who were not aware that they needed to obtain a parental order at the time of birth.
- We also reported in our blog “Surrogacy – a welcome change as intended parents become entitled to adoption leave and pay” on the changes to employment laws giving intended parents better employment rights in the form of adoption leave and pay. Again this is a welcome change, recognising that intended parents need time off work to care for their babies in the same way as traditional families.
- The comprehensive report published in November 2015 by Surrogacy UK (“Surrogacy in the UK: Myth busting and reform”) calls for reform of our outdated laws, making clear recommendations and actions for government. Commentators are working hard to get surrogacy law reform pushed up the legislative agenda.
But there is still a way to go, as evidenced in the failings of the recent case Re Z (A Child: Human Fertilisation and Embryology Act: Parental Order)  EWFC 73, involving an application for a Parental Order by a single father. The child, Z, had been conceived with the applicant father's sperm and a third party egg using an unmarried surrogate mother in Illinois. The court was asked to make a parental order on the application of one person (the legislation states that an application must be made by two people). The declaratory judgment from the court in the US, relieving the surrogate mother of any legal rights or responsibilities for Z and establishing the father's sole parentage of Z, is not recognised in England. The Court declined to make a parental order because of the two applicants rule.
I understand the father is continuing his legal battle on Human Rights grounds, however it is ridiculous that his parentage is recognised in the US where the child was born, but not in his country of residence, England, where the child lives.
The tangled legal web in this case is sadly all too common, showing the inadequacies of our antiquated surrogacy laws. I hope that the next 12 months will bring rapid change in this area to smooth the surrogacy journey for all families concerned.