International surrogacy law: Bulgaria moves to legalize surrogacy

As the global surrogacy and fertility sector continues to expand, Bulgaria’s Parliament has approved a first reading of an amending and supplementary bill to the Family Code to legalize surrogacy according to a recent report by FOCUS News Agency.

Surrogacy is reported to have existed unlawfully in Bulgaria in the past according to Kalina Krumova, an MP from the Ataka party who moved the bill. Ms Krumova added that those Bulgarians who needed surrogacy would travel to other countries like the Ukraine where surrogacy is legal and that more than 270,000 Bulgarian families have reproductive problems.

Whilst Bulgaria looks to change its  law and policy surrounding surrogacy, many other countries continue to ban surrogacy or limit its practice.  This lack of legal harmonization raises complex issues and problems in law and practice for increasing numbers of people looking to build their family through surrogacy and particularly those that enter into international surrogacy arrangements.

Fertility treatment, IVF, PGD and the creation of healthy embryos

I was delighted to attend Progress Educational Trust’s 2011 annual conference entitled “The best possible start in life: the robust and responsive embryo on Wednesday 23 November 2011.  The conference featured a series of leading lectures looking at assisted conception and the ways in which the circumstances of the embryo’s early development influence not only the likelihood of successful pregnancy and birth, but also the subsequent development and health of the child and adult in later life.

The demand for IVF continues to grow despite the relatively low success rates associated with IVF treatment.  The conference investigated the reasons for the relatively low success rates and addressed what needs to be done to improve these and create healthy embryos and babies. In addition to refining medical techniques associated with fertility treatment, discussion focused on the need for greater understanding and education about the risks associated with fertility treatment, multiple pregnancies and low birth weight babies.  There were calls for further investment and research into the longer term health of those conceived through assisted reproductive techniques and a more collective approach to family building across the world.

It was also predicted that pre-implantation genetic diagnosis (PGD) will rapidly become a significant feature of fertility treatment in future, as screening costs become more affordable and increasing numbers of medical conditions can now be identified using this technique.

Fertility lawyer Louisa Ghevaert lectures on international surrogacy at The Fertility Show 2011

I was delighted to attend the Fertility Show and give a lecture to a packed audience on the complex laws surrounding international surrogacy for a second year running.  The Fertility Show is a popular commercial event and approximately 3,200 people attended the two day event on 4 and 5 November 2011. It provided a wealth of information about fertility treatment, IVF, surrogacy, egg and sperm donation, family building, holistic fertility treatments, charitable organizations in the fertility sector and an impressive line up of expert speakers.

This year, the Fertility Show had a strong focus on cross-border fertility treatment, with an array of foreign clinics from all over the US, Spain, South Africa, Barbados, Cyprus and beyond.  I spoke alongside Dr Gad Lavy, founder of New England Fertility, and gave an overview of the complex laws and pitfalls associated with international surrogacy.  The session was sold out, indicative once again of the growing interest in international surrogacy as a family building option.  In the absence of international unification of surrogacy law and practice, there has never been a greater need to understand and grapple with the complex legal issues  international surrogacy creates, particularly as there is a public policy prohibition against commercial surrogacy in the UK.

American Bar Association hosts international fertility and surrogacy law congress in Las Vegas

I was delighted to be an invited guest speaker and moderator at The American Bar Association’s international assisted reproduction law congress in Las Vegas from 26-29 October 2011.  The conference brought together the world’s most pre-eminent experts in fertility and surrogacy law to discuss assisted conception, family building practices and law and policy across the world.

As increasing numbers of intended parents are crossing borders to access assisted reproductive technology and surrogacy programmes to build their families, there has never been a greater need for recognition and understanding of the legal issues and problems they  face.  The conference united  the world’s leading experts in fertility and surrogacy law and will help to give a much needed voice at a time when the Hague Conference on Private International Children Law has identified surrogacy as a “pressing socio-legal problem” and is investigating ways of regulating surrogacy internationally.

I was delighted to moderate an international panel of fertility law experts from the Ukraine, Greece and Brazil and for my own part give an international perspective of assisted reproductive technology law and practice.  My presentation addressed the scale of infertility, the reasons why intended parents cross borders for assisted reproductive treatment and popular foreign destinations, wider issues associated with cross-border assisted reproductive treatment, the risks and problems for intended parents travelling abroad for surrogacy and the nebulous question of whether there should be greater regulation of surrogacy law and practice.

It is estimated that one in seven couples experience problems conceiving. Intended parents cross borders to access fertility treatment and surrogacy programmes for a number of different reasons including cost, availability and cost of donor gametes and permissive legislation abroad. This raises a number of legal, practical and wider issues associated with management of donor information globally, whether there should be an internationally unified donor cap limiting the numbers of families to which a donor can donate, the wider emotional issues associated with assisted conception, management of health care costs, surrogacy law and practice, as well as citizenship and nationality and immigration law issues and protocols.

There is no international harmonization of surrogacy law, with some jurisdictions prohibiting it, others allowing it on a restricted non commercial footing and some embracing surrogacy on a commercial basis.  Surrogacy raises sensitive and difficult issues about the right to have a child and a family life, altruism, commercialism and freedom of choice. Assisted reproduction techniques now make it possible for children to be conceived and families to be created in ways that simply were not possible forty years ago.  Fertility treatment and surrogacy now has a global reach which has out-paced legislation and regulation. Until nations get to grips with these issues it is difficult to see how any form of progressive international consensus or regulation will be achieved in relation to assisted reproduction. The risk is that in the meantime international regulation of surrogacy will be introduced akin to adoption, which could limit the practice of surrogacy around the world.

Assisted reproduction lawyers play a vital role in educating intended parents about the legal issues and pitfalls when they cross borders for fertility treatment and surrogacy.  The American Bar Association is to be congratulated in hosting this international conference and creating a united voice of the world’s leading fertility and surrogacy law experts .  As a group we must continue to engage with law and policy makers across the world as they struggle to get to grips with the increasing demand for assisted reproduction and the implications and regulation issues this creates.

Surrogacy should not be equated to adoption: a headache for law and policy makers?

Surrogacy and adoption are different and they should not be treated the same in law and practice.  Surrogacy has its own unique identity and character and this brings challenges for law and policy makers who seek to regulate surrogacy at home and abroad and introduce an international legal framework for the recognition of legal parentage.

Growing numbers of people are embracing international surrogacy as a family building option. There is now an ever expanding global surrogacy sector, with Bulgaria the latest country around the world to legalize surrogacy.  However, despite the rapid expansion of surrogacy and particularly international surrogacy, there is no global regulation nor a minimum set of standards which should be followed.  The Hague Conference on Private International Law is therefore investigating ways of regulating surrogacy and the University of Aberdeen is currently looking at ways of developing an international surrogacy convention similar to the Hague Convention on Inter-Country Adoption.

A key problem that law and policy makers face is the varied approach to surrogacy around the world.  Some jurisdictions prohibit surrogacy entirely, others permit surrogacy on a restricted basis and others allow surrogacy on a commercial basis.  With such a wide spectrum, it is difficult to establish any common ground. Surrogacy also engenders a number of wider sensitivities that nations across the world continue to grapple with including right to family life, the intersection of altruism and commercialism and the reality that is now the global surrogacy market. There is much work to be done by nations around the world to make sense of these issues in this new era, particularly as the science behind assisted conception (including surrogacy) and the structure of modern families has changed dramatically compared with twenty years ago.

Whilst there is an international legal framework governing adoption, it is overly simplistic to liken surrogacy to adoption and try to shoehorn surrogacy into a similar framework.  Surrogacy represents the creation of a much wanted family by intended parents.  For English legal purposes, one or both intended parents are biologically connected to their child even if they are not recognized in law as their child’s legal parents initially (pending the grant of a parental order) due to complex and outdated laws in the UK. This biological connection is a fundamental distinction that separates surrogacy from adoption. Calls to vet intended parents’ suitability to create a child to whom they are biologically related through surrogacy raises difficult issues.

Adoption regulates the placement of a child (often in need) with a family.  Surrogacy has a very different character in that it involves the conception of a child using reproductive technology.  A surrogate born child is from the outset intended to be a member of the intended parents’ family, to be cared for and brought up by his/her intended parents. The grant of a parental order recognises this intent and triggers the issue of a British birth certificate naming the intended parents as the child’s parents as if they had been so since the birth, rather than issuing an adoption certificate making them adoptive parents from the date of grant of an adoption order.

Intended parents through surrogacy have often had a long and very difficult  journey to parenthood, often following failed assisted conception treatment, medical operations and investigations, a history of miscarriage and unexplained infertility.  Yet despite this, many intended parents continue to pursue their goal of creating a family and can offer their child a loving and supportive home and upbringing. Some intended parents turn to surrogacy rather than adoption precisely because they want to have their own biological child and because they are put off by the difficulties they perceive in navigating the adoption process.  Some intended parents also perceive that their difficult fertility journey, previous medical issues or age will count against them in an adoption application and ultimately prevent them from building their family through adoption.

The English court carefully assesses all applications by intended parents for a parental order and scrutinises intended parents’ circumstances, motivations and actions as part of this process as well as their ability to meet the surrogate born child’s needs and best interests. There are therefore a series of  checks that are already built into the parental order regime, which strike a careful middle ground approach balancing the best interests of the child against the public policy restriction against commercial surrogacy and the rights of individuals to have a family life.  The parental order regime does, however, currently take place post birth and the merit of introducing a pre-birth legal process in England and Wales to bring forward the legal process and vetting procedures  (like that adopted in California) is perhaps worthy of wider debate.

Any laws or international legal protocols which are introduced to try and regulate surrogacy or limit its practice and which make it harder to undertake surrogacy may cause problems in practice.  Given the widely different approaches to surrogacy across the globe, it is difficult to see how a global consensus will be reached and this could continue to drive intended parents to circumvent  legal frameworks that are introduced to regulate surrogacy and run the legal gauntlet notwithstanding the risks. There have already been a number of internationally publicised cases where intended parents have crossed borders to particiapte in surrogacy programmes in cirumstances where surrogacy is not permitted in their homeland (or is legally restricted) and which has resulted in palpable difficulties for them and their surrogate born baby.

The expanding global surrogacy sector, readily accessible information about foreign surrogacy destinations on the internet, celebrity endorsement of surrogacy and media coverage as well as ever improving success rates associated with fertility treatment can make surrogacy an appealing family building option, particularly if other fertility treatments have been unsuccessful. Surrogacy can bring immeasurable joy to people who’s lives have previously been blighted by the pain and heartache associated with infertility. Surrogacy can make people’s dreams of having a family come true, create new life and represent a truly life-changing gift.

Surrogacy is therefore far more than the placement of a child (often in need) with a family.  Surrogacy represents the conception of a much wanted child by intended parents who want to become parents and who are for English legal purposes biologically connected to their child. In practice, a surrogate born baby becomes part of the intended parents’ family at birth and is cared for by them from day one, unlike adoption. The special unique character and identity of surrogacy therefore needs greater understanding and recognition.  Surrogacy is different from adoption and it should not be treated the same in law or practice and this creates challenges for law and policy makers looking ahead.

International surrogacy article featuring Louisa Ghevaert published in fertility magazine Fertility Road

An article of mine entitled “International surrogacy: a legal minefield?” is featured in the winter 2011/2012 edition of fertility magazine Fertility Road.  The article tackles the complex legal issues associated with international surrogacy, highlighting the difficulties, key legal steps, the issues surrounding travelling home to the UK with baby and the legal requirements for a parental order.

International surrogacy can seem very appealing due to accessible information about foreign surrogacy destinations on the internet, celebrity endorsement and an expanding global surrogacy sector.  However, the legal issues are complex and this can create many problems without careful management and expert legal help.