The unregulated Indian surrogacy market could be worth as much as £1.5 billion a year and growing, according to Indian authorities. It is believed there are up to 1,000 Indian clinics offering surrogacy and fertility treatment services to international intended parents through a combination of IVF, egg donation and surrogacy.
Demand for surrogacy in India continues to rise, with increasing numbers of British people travelling to India to have a much wanted baby in light of the legal restrictions and perceived uncertainty associated with the process in the UK. British intended parents willing to travel to India for surrogacy come from all walks of life and include both heterosexual and same-sex couples. Many have turned to surrogacy having become concerned about the difficult and complex procedure to adopt and foster in the UK.
The Indian government has carried out a study looking at ways to introduce legislation to regulate surrogacy in India. Proposals have been drawn up to introduce safety standards, prohibit sex selection, prevent women able to carry their own pregnancy from undertaking surrogacy and establish a register of clinics with a regulatory body to supervise and enforce standards. The proposals would also require intended parents to be able to confer their own citizenship upon their surrogate born baby automatically at birth in an attempt to prevent further cases of babies being born stateless and parentless due to an international conflict of law. However, legislation remains in draft and it could take many years before it becomes law.
For those experiencing infertility or same-sex couples, surrogacy can deliver hope and a much wanted child. However, international surrogacy is fraught with complex legal issues and potential pitfalls. There is a public policy ban against commercial surrogacy in the UK and egg donors can only be paid £750 for expenses and this causes an international conflict of law when British intended parents enter into a commercial surrogacy arrangement and conceive with the help of a commercial egg donor in India. Law in the UK does not automatically recognise an Indian birth certificate naming intended parents as their surrogate born baby’s parents and they currently need to undertake a complex parental order application in the English court to secure parental rights in the UK. Intended parents must also have a viable immigration action plan to ensure they can obtain the right travel papers and clearance to get their baby home safely to the UK after the birth. In the absence of this, they risk their baby being left marooned abroad and facing a difficult and complex legal battle with the British Home Office.
The National Institute for Health and Clinical Excellence (NICE) has today issued new draft guidance concerning the provision of fertility treatment and IVF on the NHS. The new proposals recommend that the age limit for women undergoing IVF treatment on the NHS should be increased from 39 to 42 years. The proposals also recommend for the first time that same-sex couples should qualify for fertility treatment if they have undergone six cycles of artificial insemination at a private fertility clinic. Furthermore, the proposals recommend that women should be offered fertility treatment on the NHS after two rather than three years of unsuccessful trying for a baby.
NICE guidance on the provision of IVF treatment on the NHS hasn’t been updated since 2004. It is high time this is achieved to reflect better treatment success rates, equality legislation and greater demand for IVF by women aged 35 upwards. However, NICE guidance is not mandatory and it remains to be seen whether these new proposals will bring about greater recognition of IVF as a legitimate clinical need or greater fairness in terms of access to fertility treatment on the NHS across the country. In the meantime, fertility patients continue to battle with the reality of the postcode lottery and varying restrictions imposed by PCT’s who continue to flout the guidance.
Infertility affects one in six couples across the UK from all walks of life. The IVF postcode lottery causes great distress for people when faced with the reality that they will not be offered the recommended number of free IVF cycles on the NHS or worse none at all. This can lead to relationship breakdown and depression which can blight people’s lives and cause long term misery and hardship. Private fertility treatment can cost thousands of pounds which is too often beyond the reach of couples, particularly in the current economic climate. With an increasingly ageing population, we need to do all we can to increase the birth rate in the UK to mitigate the increasing economic burden placed upon younger generations of society.
The owner of a US surrogacy agency in Modesto pleaded not guilty on Monday to criminal charges of fraud and money laundering. Prosecutors allege she stole more than $2 million from clients who had paid money into trust for surrogacy fees and egg donation.
US authorities allege that the owner of SurroGenesis, Tonya Collins, encouraged clients to invest their money with a personal property escrow company which purported to be independent and that she concealed her ownership of the company and created fictitious staff identities to make it appear independent. Prosecutors allege that she then transferred client money to personal accounts to pay for a lavish lifestyle including holidays, homes and cars.
Judge Gary Austin is reported to have indicated that if found guilty, Ms Collins could face up to 20 years in prison and a $250,000 fine for mail fraud and wire fraud, up to 30 years in prison and a $1 million fine for bank fraud and 10 years in prison and a $250,000 fine for money laundering.
There are no centralized laws governing the practice of surrogacy in the US and this case follows on from the recent prosecution of an international baby-selling ring headed by a prominent former US surrogacy attorney. There is also no international harmonization of surrogacy law around the world, with each jurisdiction taking its own approach to surrogacy and this can create a legal quagmire for intended parents. Whilst such cases are unusual, it highlights the risks associated with assisted conception and brings into focus once again the importance for intended parents to vet the professionals they choose to work with and ensure they have a clear understanding of the legal framework and issues relevant to their family building plans.
Leading fertility magazine Fertility Road (April/May 2012) features an article of mine entitled “Surrogacy and the celebrity factor”.
Celebrity endorsement of surrogacy continues to capture public imagination and celebrity interest in surrogacy shows no sign of abating. Hollywood movie actress Elizabeth Banks has recently spoken poignantly and compellingly about her reasons for turning to surrogacy and the birth of her son.