Surrogacy in focus: the perils and the pitfalls

The birth of a much wanted child can bring immeasurable joy and happiness, but the legal issues associated with an international surrogacy arrangement are complex. The lack of international harmonization of surrogacy law and practice and widely differing approaches to surrogacy across the world raises many challenges for intended parents and law and policy makers. Recent reports that three US surrogacy lawyers have pleaded guilty following a criminal investigation has once again brought international surrogacy into focus.

In the UK, surrogacy is a restricted and regulated practice.  There is a public policy prohibition against commercial surrogacy and commercial surrogacy agencies are illegal. It is a criminal offence to advertise for a surrogate mother or to advertise as a prospective surrogate mother.  Surrogacy contracts are not enforceable in law and it is a criminal offence for solicitors in the UK to professionally organize a surrogacy arrangement or prepare a surrogacy contract.  The English court carefully scrutinises each surrogacy arrangement to police the legal restrictions before conferring legal parenthood upon  intended parents as part of a post birth court process known as a parental order.

The legal framework and restrictions surrounding surrogacy in the UK are  therefore very different  to other legal jurisdictions where surrogacy is permitted on a commercial basis and there is no central regulation or control.  The legal restrictions in the UK are designed to prevent the commercialization of surrogacy and stop concerns about the sort of activity reported to be at the heart of the recent US surrogacy criminal investigation.  However, the legal patchwork of surrogacy law and practice across the world and the international conflicts of law this creates means intended parents must proceed with care and get to grips with the legal issues from the outset.

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