High Court Judge gives interview on international commercial surrogacy

High Court Judge, Mr Justice Hedley, gave a rare interview to the BBC yesterday highlighting the legal difficutlies international surrogacy creates.  He said  he “had been extremely anxious about the difficulties people have got themselves into” entering into commercial surrogacy arrangements “without appreciating the legal implications of doing so”.

Mr Justice Hedley’s interview follows the most recent publication of an international surrogacy case by the High Court last month, where he gave retrospective approval to a commercial surrogacy arrangement entered into by a  British couple in Ukraine, and which left a surrogate born child stateless and parentless due to an international conflict of law.

Speaking generally about surrogacy law, Mr Justice Hedley said that the most important thing was “to talk through the issues” and that it was “the immigration issues which were particularly important” to stop people getting themselves “into a mess with their children”.

Whilst the law in the UK seeks to prevent commercial surrogacy, the High Court does have the power to retrospectively authorise a commercial payment to a surrogate mother.  Mr Justice Hedley said that the reason commercial payments were retrospectively authorised  “was not to encourage commerical surrogacy but because of the impossible position in which the child born as a result of the arrangement finds itself in when back in this country“. However he added, “the court is still entitled to scrutinise these payments (and does so) to ensure they are not oppressive, do not overbear the will of the surrogate and are not simply the buying of children by people not held fit to have children in this country and this could still prevent an order being made”.

The retrospective approval of any international commercial surrogacy arrangement by the English High Court remains a rigorous and involved legal exercise. The court scrutinises each case carefully on a case by case basis to ensure that the legal criteria have been met and that the nature of the surrogacy arrangement and the commercial sum paid do not amount to the clearest case of abuse of public policy.

However, this latest case once again raises questions about surrogacy law in the UK and the problems it can create.  It is not illegal for British people to enter into a commercial surrogacy arrangement abroad, although the law prevents people entering into professional arrangements on the same basis in the UK.  Mr Justice Hedley said  that “if the will of Parliament was being subverted, then it was a matter for politicians to address” and that “control has to be exercised before the child gets back in the country either by preventing people doing this overseas or by preventing people entering at the border”. He added “by the time the case comes to me the best thing I can do is focus on the welfare of the child” as the child’s welfare is the paramount consideration of the court.

This latest case graphically illustrates the very real problems international surrogacy can create.  Surrogacy law in the UK was not designed to cater for international surrogacy. It creates international conflicts of law which can leave children born stateless and parentless and stranded in a legal black hole. Surrogacy law in the UK regards the foreign surrogate and her husband as the child’s legal parents and there is no automatic recognition of foreign birth certificates and foreign parentage orders.  Intended parents can face all manner of immigration law difficulties trying to secure their child’s safe passage home to the UK.  Foreign surrogacy organisations can unknowingly provide an overly simplistic picture of the UK legal issues which can lull British people into a false sense of security and leave them unprepared for what lies ahead. Whilst surrogacy is increasingly a global reality, there is not international harmonisation of surrogacy law and all too often people don’t tackle the legal issues until late in the process, causing misery and heartache for themselves and their family. Anyone entering into an international surrogacy arrangement should prepare thoroughly and ensure they fully appreciate the legal issues before they begin.

I acted for the parents in Re: IJ (a child) 2011, the Ukrainian case referred to above.

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