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.
International surrogacy case Re: IJ (a child) 2011 is the latest High Court decision to be published in the UK, awarding legal parenthood to British parents who’s surrogate born child was born stateless and parentless in the Ukraine. The child, known only as IJ, was born without any citizenship anywhere in the world due to an international conflict of law – Ukrainian law regarded the British couple as the parents whilst English law treated the Ukrainian surrogate mother and her husband as the parents. The High Court granted legal parenthood to the British parents to safeguard IJ’s welfare even though they had entered into a binding commercial surrogacy arrangement in the Ukraine, which breached public policy restrictions designed to prevent commercial surrogacy in the UK.
The case contains a stark warning by English High Court Judge, Mr Justice Hedley, about the legal difficulties that overseas surrogacy can create. Mr Justice Hedley highlights the very real difficulties the British couple experienced trying to obtain immigration clearance to bring IJ home to the UK, made worse by IJ’s need for hospital treatment in the Ukraine. He emphasizes the fact that the British couple “who had done their conscientious best to act lawfully and to be prepared for all contingencies, had been mislead by some unduly simplistic advice from the Ukrainian surrogacy agency”.
Mr Justice Hedley also stresses in the judgment the critical importance of obtaining expert legal advice saying “those who travel abroad to make these arrangements really should take advice from those skilled in our domestic law to be sure as to the problems that will confront them (not least of which is immigration) and how they can be addressed. Reliance on advice from overseas agencies is dangerous as the provisions of our domestic and immigration law are not fully understood”.
This is not the first time that British people have got into legal difficulties entering into international commercial surrogacy arrangements, leaving surrogate born children legally vulnerable and stranded abroad. The case echos the case of Re X and Y (foreign surrogacy) 2009, where twins were born stateless and parentless in the Ukraine to a British couple who despite their best efforts had not been made aware of the complex legal issues associated with commercial international surrogacy arrangements. The High Court stepped in on that occasion too and awarded legal parenthood to the British couple to safeguard the twins and issued a warning about the associated legal difficulties which continue to require careful in-depth scrutiny by the High Court on a case by case basis.
International surrogacy arrangements are fraught with legal difficulties because there is no international harmonisation of surrogacy law. Foreign birth certificates and foreign parentage orders in respect of surrogate born children are not automatically recognized in the UK and intended parents must usually apply to the English court for a parental order to obtain legal parenthood and legally secure their family. As interest in surrogacy grows, with the rise of foreign surrogacy destinations including Ukraine, India and some US states, ever present media interest and celebrity endorsement by the likes of Elton John and Nicole Kidman, there has never been a greater need to understand and manage the legal issues to avoid the legal pitfalls.
I successfully acted for the parents in both Re: IJ (a child) 2011 and Re X and Y (foreign surrogacy) 2009 and to read more information visit my international surrogacy page.
An article entitled “International Surrogacy: Payments, Public Policy and Media Hype” which I co-authored has been published by Family Law in their May 2011 edition. The article examines the landmark High Court international surrogacy case of Re L (commercial surrogacy) , which attracted front page national headlines in December 2010.
The parents had entered into a commercial surrogacy arrangement with a surrogate mother in Illinois, California, leading to the birth of a much wanted child. Whilst the surrogacy arrangement was entered into lawfully in Illinois, it would have been unlawful to have entered into such an arrangement on a professional basis in the UK due to the public policy ban on commercial surrogacy. The parents successfully obtained a parental order and the case marks a legal watershed that the child’s welfare is now the court’s paramount consideration except in the clearest case of abuse of public policy.
English High Court Judge, Mr Justice Hedley, published the judgment due to the policy changes in international surrogacy and to send a clear message that intended parents need expert legal help and need to tackle the immigration and re-entry requirements into the UK before they enter into an international surrogacy arrangement.
The intense media coverage of the case brought the issue of payments into the spotlight, together with problems with existing surrogacy law in the UK, sparking debate and highlighting the apparent globalisation of the surrogacy market.
I am internationally recognised as a leading expert in UK fertility, family and parenting law with expertise covering international surrogacy and UK surrogacy, donor conception, co-parenting, embryo storage and testing, posthumous conception, children and parenting, gay and lesbian parenting, divorce and finances, cohabitation and international family law.
I am a prominent commentator on fertility law issues on television, radio and in the national press. My pioneering practice of fertility and parenting law derived from my own personal achievement of a hard won family. I have also dealt with some of the most significant fertility law cases in the UK representing parents:
In Re L (a minor) in the High Court in October 2010, marking a legal watershed ruling that the welfare of the child is decisive over the government public policy ban on commerical surrogacy except in the clearest cases of abuse of public policy.
In Re X & Y in the High Court in November 2008, being the first case in UK legal history to test the law for British parents conceiving through an international commercial surrogacy arrangement and which involved complex and groundbreaking legal issues.
Melanie and Robert Gladwin, helping them to save their frozen embryos from destruction and winning a high profile last minute change to the law in relation to embryo storage in September 2009. I was featured asThe Times’ Lawyer of The Week 1 October 2009) and Law Society Gazette Lawyer in the News (17 September 2009) as a result.
I provide expert fertility and parenting law commentary on television, radio and in the national press. I have provided advice to the BBC and written articles for BioNews, national magazines as well as leading legal journals including Family Law, International Family Law, Family Law Journal and The Review.
I am an accomplished public speaker and I regularly speak at national fertility sector events.
I have over a decade of family, fertility and parenting law experience. I have been a member of Resolution (the professional association of family lawyers) since 2003, an accredited member of the law Society Family Panel since 2005 and trained as a collaborative lawyer. I have particular expertise in complex private family and children law and heavy weight litigation often with an international element including surrogacy arrangements, acquisition of legal status and parental rights for birth and non birth parents and other significant adults, as well as issues surrounding contact, care and upbringing of a child and parental responsibility.
I was a member of the stakeholders’ Parliamentary strategy group concerned with the Human Fertilisation and Embryology Act 2008 and its associated regulations, and lobbied for legal changes on a diverse range of issues, including surrogacy and embryo storage. I submitted written evidence as an expert adviser to the HFEA’s Ethics and Law Advisory Committee, and provided detailed legal comment to the Department of Health’s 2009 consultation on proposed draft surrogacy regulations, which won changes to the law on nationality in international surrogacy situations.
I provide regular help and assistance to charities and not-for-profit organisations.
I qualified as a solicitor in 2000.