UK surrogate mother, Jill Hawkins, is pregnant again for a ninth time. Jill, a legal secretary from Brighton aged 47, is due to give birth to her ninth and tenth surrogate babies three weeks before her 48th birthday. Jill spoke of her pride of being a surrogate mother and how fulfilled she felt during pregnancy during a recent press interview.
Jill’s first seven surrogate babies are reported to have been conceived through artificial insemination using her own eggs and the intended father’s sperm. This time round, Jill conceived twins through IVF using the intended parents’ own embryos.
Jill is the most prolific surrogate mother in the UK, following Carole Horlock’s move to France after giving birth to twelve surrogate babies. Jill and I were interviewed about surrogacy law and practice on BBC Breakfast last year (January 2011).
Surrogacy is a restricted legal practice in the UK. There is a public policy restriction against commercial surrogacy and surrogacy contacts are not binding in law. The surrogate mother is treated in law as the child’s legal mother at birth (regardless of biology) and intended parents need to apply to court for a parental order to extinguish the legal status of their surrogate mother and obtain full legal parental status for their child.
Theresa Erickson, a former prominent Californian surrogacy lawyer, was last Friday sentenced to five months in prison, nine months home confinement, three years of supervised release and a $70,000 dollar fine plus restitution for her role as ring leader of what prosecutors termed an illegal international baby-selling ring. Her sentence follows the prison sentence that was delivered to her co-conspirator and Maryland lawyer, Hilary Neiman, last December. Carla Chambers, the third co-conspirator, also received five months in prison for her role and guilty plea to knowingly receiving money from an illegal enterprise.
The legacy of this case will create longstanding issues for the intended parents, surrogates and children involved. A point noted by the federal judge who stated that Erickson and her co-conspirators had tainted the birth stories of the children involved. Erickson acknowledged her wrongdoing in court and said she had lost her way.
The six year scam, which involved at least 12 fake surrogacy arrangements, stands as a stark reminder of what can happen when surrogacy and assisted reproduction goes wrong. US prosecutors delivered a statement in court stating that Erickson had been motivated by greed and that she had preyed upon people’s most basic need to have and raise a child, charging childless couples $100,000 or more to become intended parents and step into falsified ‘surrogacy arrangements’ where surrogates were already pregnant using donor embryo treatment in the Ukraine.
Assisted reproduction and surrogacy can offer hope to many people who are unable to have a child of their own. Surrogacy can deliver the reality of a much wanted child and family after years of personal heartbreak and upset. The actions of these individuals have, however, left their mark and raised questions about the control and regulation of assisted reproduction across the world and the role of the professionals involved. International surrogacy arrangements raise a number of complex legal and practical issues for intended parents and surrogates to get to grips with, in what remains an expanding and fast moving area of law and practice. This case shows that assisted reproduction and surrogacy is not without its risks and that great care is needed at all stages of the process.
Surrogacy is now a global reality and this brings significant challenges for intended parents, law and policy makers and lawyers in terms of managing the complex legal issues it creates. Surrogacy is a legal, albeit restricted practice in the UK. Surrogacy also has a unique character and identity of its own that is separate from other family building methods (including adoption).
Surrogacy is governed by assisted reproduction law in the UK, which often creates international conflicts of law when intended parents enter into surrogacy arrangements abroad. Surrogacy also has its own unique legal remedy in the UK, known as a parental order, marking it out from other mainstream areas of family law. Surrogacy, and particularly international surrogacy, is a rapidly evolving area of law and there are many legal issues and pitfalls as a result of the lack of international unification of surrogacy law and differing attitudes towards surrogacy around the world.
The International Family Law Practice (2nd Edition) features a chapter on surrogacy which I have co-authored with David Hodson, a Deputy District Judge of the Principal Registry of the Family Division and partner at The International Family Law Group LLP. Having pioneered the practice of fertility, surrogacy and parenting law in the UK and litigated the leading international surrogacy cases in the English family court, I was able to provide a valuable specialist contribution that traces the background and development of surrogacy law and practice in the UK. This major practitioner reference book provides comprehensive coverage of the international elements of English family law and marks the intersection of assisted reproduction and family law.
Later this week, San Diego surrogacy attorney Theresa Erickson will be sentenced for her part in what US prosecutors have called an international baby-selling ring. It is likely she will face a prison sentence, following her guilty plea to a wire fraud charge last August.
Ms Erickson was charged along with two others, a Maryland lawyer called Hilary Neiman and Carla Chambers, a nurse from Las Vegas. Ms Neiman was sentenced last December to one year in prison, being five months in custody and the rest under home confinement, for her part in the scheme.
The women recruited surrogates and sent them to the Ukraine where they conceived and then sourced intended parents for the unborn babies once the pregnancies were well established. Prosecutors alleged that the intended parents were falsely told that a previous surrogacy arrangement had fallen through and that they could step in for an alleged fee of $100,000 or more. It is further alleged that falsified court documents were then filed in the Californian court presenting the case as a surrogacy arrangement to obtain pre-birth orders for the intended parents. It is reported that the scheme involved at least 11 babies.
Ms Erickson was a successful and high profile US attorney who specialised in surrogacy law and who also owned a surrogacy and egg donation agency to help people become parents through surrogacy. She was herself an egg donor (resulting in the birth of twins) and a prominent commentator about surrogacy on television and radio. Her involvement in this scandal has sent shock waves through the assisted reproduction community and caused many to question her motivations and actions.
Under Californian law, intended parents must enter into a surrogacy contract with a surrogate before conception. The timing is critical. It is illegal for a woman who is already pregnant to agree to handover a baby to the intended intended parents for a fee and this is regarded as baby-selling.
The San Diego Superior Court has now tightened up its legal process and requirements to try and prevent any further cases of this nature. Whilst the vast majority of surrogacy arrangements are successful and follow due legal process, this scandal has attracted unwelcome headlines and coverage. It highlights the problems and pitfalls that can occur in an area of law and practice that lacks widespread unification or regulation. It also brings into focus the importance for intended parents to get a clear grasp of the legal issues from the outset and ensure that they have confidence in their lawyer and the other professionals with whom they work.
For those considering entering into an international surrogacy arrangement, it is important to tackle the legalities in their surrogacy destination country as well as their home country upon their return with their baby. As there is no international harmonization of surrogacy law, a Californian pre-birth order will not be automatically recognised in the UK and English law expects intended parents to apply to court for a parental order to secure legal parental rights for their child. International surrogacy arrangements raise a number of complex legal issues involving public policy and international legal conflicts of law which make any application for a parental order a significant legal exercise. This process can become even more complicated if any legal discrepencies or problems come to light along the way, such as the those highlighted in the alleged baby-selling ring.
The English High Court has issued a further judgment which once again highlights the legal problems associated with international surrogacy, both in terms of immigration arrangements and also domicile.
The case, Z and another v C and another 2011, concerned a same-sex Israeli couple who entered into a surrogacy arrangement with a clinic in India through a surrogacy agency in Israel, resulting in the birth of twins in November 2010. This followed unsuccessful attempts to conceive a child with a surrogate they were introduced to through a UK not for profit surrogacy agency after the intended parents relocated to the UK in 2008. The first applicant entered the UK as a highly skilled migrant. His and his partner’s leave to remain was renewable and could be varied to indefinite leave to remain after five years continuous residence in the UK.
The preliminary issue for the English court to determine, was whether one or both of the intended parents was domiciled in England at the time of their application, this being a prerequisite for the court to make a parental order. In giving judgment, Mrs Justice Theis, ruled “I am entirely staisfied that Z’s assertion of an English domicile is genuine, is not a misuse of proceedings or contrived for any immigration purpose. UKBA has a policy permitting entry to surrogate born children including those whose ‘parents’ intend making a parental order application and appear to satisfy the requirements for a parental order in the UK”.
The case also graphically highlights the immigration law difficulties that can arise in terms of navigating a safe path home with surrogate born babies post birth. Following the twins’ birth, the intended parents obtained Israeli passports for them. The intended parents then travelled to Israel with the twins to apply for entry clearance to the UK for them as their dependants, based on telephone advice from UKBA that the twins’ must make their application for entry clearance from their country of nationality, rather than India, their country of birth. The application was made in the alternative under the UKBA’s surrogacy policy and the Immigration Rules. The applications were refused, although their appeal was successful based on human rights arguments (Article 8). The Immigration Judge’s decision on appeal was then challenged by the Secretary of State and a further appeal was determined by the Upper Tribunal of the Asylum and Immigration Chamber in November 2011 where the further appeal was dismissed. The tribunal then gave the twins entry clearance into the UK for one year on an expedited basis and it was hoped that the twins would enter the UK by the end of the year (13 months after their birth).
Th court further stated that in this case the twins would not obtain British nationality upon the grant of a parental order, simply a capacity to be treated as the children of their parents in immigration law and to be granted leave to remain in line with their parents.
This case brings into sharp focus the complex legal problems that can arise when intended parents enter into an international surrogacy arrangement against the backdrop of complex multi-national personal circumstances.
A San Diego hospital chain is reported to be seeking to claim back hundreds of thousands of dollars from the ringleader of what US prosecutors alleged was an illegal “baby-selling ring”. The ringleader, who pleaded guilty to wire fraud last August, is due to be sentenced this month and could face up to five years in prison. The hospital claims it lost money on the care and delivery costs of seven children born as a result of the illegal actions of the professionals involved.
This US surrogacy scandal, which sent shock waves through the international assisted reproduction and surrogacy sector, stands as a continued reminder of the problems and pitfalls that can arise. International surrogacy raises many complex legal issues and can become a minefield for the unwitting.