Recent media coverage of the Baby Gammy surrogacy case in Thailand has, once again, put commercial surrogacy at the forefront of public debate. In relation to that, I have seen countless articles and listened to radio programmes highlighting the pitfalls of surrogacy and the law in the UK. Many of the reports on the law here have been incorrect; it is a widely stated myth that payments to a surrogate are illegal in the UK, which isn’t true.
In fact, the relevant legislation does not prohibit payments from intended parents to a surrogate in the UK, but a third party (e.g. an agency) cannot profit from such an arrangement. In addition, when intended parents come to apply for a Parental Order in the UK (to obtain legal parental status of the surrogate child), they will need to ask the court to authorise any payments made to a surrogate. So, while the level of payments made will be under scrutiny, it is not illegal to pay a surrogate.
Are surrogate children protected by international rules?
Currently, there is no international regulation of surrogacy, nor international convention dealing with the legal issues involved, leaving children (like Baby Gammy) born of surrogacy arrangements without proper protection or security. Intended parents, surrogates and surrogate children have to rely on local surrogacy laws – if there are any - which vary from country to country. As was seen in the Baby Gammy case, there is frequently confusion over what local law actually says in relation to surrogacy.
Some countries have a very liberal approach whilst others don’t recognise children who are born via a surrogacy arrangement, often leaving children stateless.
How can we tighten the rules?
UK and international surrogacy lawyers are calling for worldwide regulation of the surrogacy industry and an international convention to ensure protection of children born of these arrangements. The Hague conference is working on the issues arising from international surrogacy arrangements but an international convention is likely to be many years off.
The complexities of cross-border surrogacy arise because of the potential number of interested legal systems: where the surrogate lives; where the intended parents live and their citizenship; the country where the birth is taking place and where the surrogacy agreement is entered into.
As a starting point, we urgently need an international code of practice and regulated surrogacy clinics.
Lessons we can learn from the Baby Gammy case
- Intended parents considering surrogacy either in the UK or abroad should take legal advice in the UK and the country of the surrogate child’s birth before entering in an agreement - it is essential that both the surrogate and the intended parents are fully aware of their rights and duties under the agreement and local laws.
- Intended parents need to think about the worst case scenario - issues such as downs syndrome and other pregnancy complications should be considered carefully and agreed well before a contract is signed and the surrogate mother is pregnant. This is potentially the most important contract that intended parents will sign and they need to enter into it with their eyes wide open.
- It is clear that we need better regulation and legal recognition across the jurisdictions where surrogacy is legal - there is a pressing need for surrogacy to be properly regulated across the world, to ensure protection for children born of surrogacy arrangements.
- Intended parents and surrogates should be properly screened and assessed before a pregnancy goes ahead, in a similar way to the adoption process.
- All clinics offering surrogacy should be regulated and signed up to a strict code of practice - with fines imposed for contravention.
- We need a better system in the UK to allow commercial surrogacy in a properly regulated and safe way - British couples are choosing surrogacy in the UK and abroad, so why not regulate it properly?
The legal and ethical issues surrounding surrogacy are complex but Governments need to face up to the fact that intended parents are still going ahead, despite the risks, leaving children without proper protection.