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.
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.