Resolution, the professional body for family lawyers in England, has just published a guide with which I collaborated entitled “The Modern Family (A Resolution Guide). I’m delighted to say it includes a chapter on assisted conception law, donor conception and surrogacy.
The guide deals with modern day families created through step-parenting, adoption, assisted conception, surrogacy, same-sex parenting and grandparenting. Its aim is not only to deal with the legal issues when families breakdown but to also strengthen modern families and family networks. The guide acknowledges the fast moving issues created by family fragmentation, reform, movement abroad and creation through assisted reproductive technology and provides a concise overview of the main issues and difficulties involved.
There are number of factors that motivate the practice of surrogacy around the world, including altruism, infertility, commercialism and in some cases grief. Different jurisdictions take different approaches to surrogacy law and practice in what remains an evolving area fraught with many difficulties and challenges.
Sometimes, people are motivated to turn to surrogacy through tragedy as in the recently publicised Indian case of KP Ravikumar and his wife Karthyayani. Their only son died unexpectedly of testicular cancer in January 2011, leaving behind a semen sample in case his cancer treatment left him infertile. Ravikumar and his wife recently won a court order for the release of their son’s semen which they plan to use to conceive a child through surrogacy. Their case has made headlines and brought surrogacy once again into the media spotlight.
Ravikumar, aged 59, and his wife Karthayani, aged 58, first wanted to adopt a child following the death of their son but found they were disqualified by their combined age. Motivated by their grief and sense of loss, they turned to surrogacy. They found a relative of Ravikumar who was willing to become a surrogate mother for them and they planned to sell some of their land to raise enough money to cover the costs of the surrogacy arrangement. However, their surrogate subsequently backed out following intense media publicity.
Much of the publicity surrounding this case focused on the ages of Ravikumar and his wife and their desire to have their dead son’s child. India has no formal surrogacy laws as the Assisted Reproductive Technology (ART) Regulation Bill 2010 has not yet been approved. As a result, there is no formal age bar or other legal restrictions preventing them from entering into a surrogacy arrangement.
Whilst the story is compelling in its grief and tragedy, it raises a number of complex legal issues associated with ownership of their son’s semen, parenting in later life, the best interests of the surrogate born child and the regulation of surrogacy law and practice. The lack of legal uniformity of surrogacy around the world, combined with growing demand for surrogacy and assisted conception creates a number of challenges for law and policy makers. This case aptly demonstrates the overwhelming desire that can motivate some to become parents through surrogacy when all else has failed and the complex issues it can create. Assisted reproductive technology is here to stay and this makes family building possible in ways that simply was not a reality twenty or thirty years ago.
The Irish Minister for Justice, Equality and Defence has recently issued guidelines for Irish intended parents who enter into surrogacy arrangements abroad. Whilst any attempt to streamline the complex legal issues and problems associated with international surrogacy is to be welcomed, these guidelines are a far cry from a much needed root and branch overhaul of the fundamental legal treatment of international surrogacy arrangements in Ireland and the introduction of formal surrogacy legislation.
The new guidelines coincide with recent media coverage of an increasing number of foreign born surrogate babies left stranded abroad in circumstances where their Irish intended parents have no clear means of securing their safe passage home to Ireland after the birth. Whilst the guidelines do create a clearer pathway for Irish citizenship or emergency travel clearance to be granted to the surrogate born child if the intended father is an Irish citizen and biological father, this can still take many weeks or months to secure in circumstances where a DNA test and a raft of other paperwork and/or an Irish court order is also required.
The Irish surrogacy guidelines make no change to the legal position of the Irish intended mother who lacks legal status for the surrogate born child at birth. Irish law continues to regard the surrogate mother as the child’s legal mother by virtue of carrying the pregnancy and if married her husband as legal father (a position which is mirrored under English law).
Overall, the Irish surrogacy guidelines signify a need for greater legal certainty of the complex legal issues that surrogacy and assisted reproduction create. The guidelines mark a step forward but fall short of radical reform. The lack of a uniform approach to surrogacy law and practice around the world continues to create complex international conflicts of law and very real difficulties for intended parents and their surrogate born children alike. There needs to be rational international debate and consensus at its widest level about the nature and practice of surrogacy, payments, issues of enforceability and the associated international movement of children.
Despite a legal ban on surrogacy in France, the Court of Appeal in Rennes has recently upheld a previous ruling to give French civil status to twins born to a French couple following an Indian surrogate arrangement.
This ruling is in stark contrast to a separate case last year where the French Supreme Court denied civil status to twins born following a US surrogacy arrangement. The Court of Appeal’s recent decision in Rennes was made on the basis that although they could not validate the surrogacy agreement, they could grant the twins civil status relying on article 47 of the French civil code (even though similar arguments in the French Supreme Court were unsuccessful last year). This judgment placed the best interests of the twins at the heart of the decision, although it is still unclear if this marks a change in attitudes towards surrogacy law and practice in France as a whole.
International surrogacy arrangements continue to raise complex legal issues that challenge law and policy around the world. Many countries prohibit surrogacy or legally restrict the practice of surrogacy. International surrogacy arrangements often create complex international conflicts of law that can leave surrogate born children stateless with no citizenship anywhere in the world.