When children are left in a legal no man's land due to our country's surrogacy laws, they are no longer fit for purpose. Yet as a milestone High Court case has shown, this is exactly what is happening.
The children in that case, now aged five and eight, were born following a surrogacy arrangement between a British couple, one of whom was the biological father, and a surrogate mother in California. Under Californian law, the couple would be the legal parents, but under UK law, it is the surrogate mother (and if she is married, as was the case here, her husband) who is the legal parent. In order to become the legal parents, the British couple needed to apply for a court order called a 'Parental Order', which would give them full legal rights and responsibilities. However, this needs to be done within six months of the child's birth, and the couple were not aware of that requirement until years after the birth of the children.
This meant that whilst the British couple were raising and caring for them, the children had no legal parents in this country, which can give rise to all sorts of legal and practical difficulties. It also left them facing having to adopt the children instead, which would not reflect the true circumstances of the children's conception and birth. In other cases, parents have found themselves unable to bring their children back into the country for months due to the incompatibility of our surrogacy laws with other countries.
Fortunately in this case, the judge, Ms Justice Russell, felt that protecting the welfare of the children meant that the Parental Order should be made despite having missed the statutory deadline. But in doing so, it is clear that the courts now have to creatively interpret the current law to rectify situations that leave children and their parents adrift.
And it's not just international surrogacy that can create complex issues for the court to resolve. Many will be familiar with the recent controversial High Court case in it was ordered that a small girl live with her biological father and his partner rather than her biological mother, following the breakdown of an informal surrogacy arrangement.
It is clear that our surrogacy laws are no longer fit for purpose, often creating a great deal of uncertainty, expense and heartbreak to the families involved in this process. So how can they be brought up-to-date?
1. Introduce a Pre-Birth Regulatory Framework
Unlike many other countries, in the UK all of the necessary legal requirements can only be dealt with once the child has been born, and within the 6 month period. This can cause difficulties for couples who are unaware of the basis upon which a court will or will not make an order granting them legal parenthood, or find themselves in a dispute with the surrogate mother.
By introducing a framework that would allow for these issues to be ironed out before a child is born or even conceived, all those involved would have a benefit of a greater clarity as to where they stand. Whilst there are concerns that making surrogacy arrangements enforceable may impact negatively on the surrogate mother if she were to change her mind, their current lack of enforceability doesn't necessarily remove that issue.
Such a pre-birth framework could address that and provide for psychological screening and counselling to ensure all involved are suitable for the process, and if professional third parties were allowed to assist in negotiating and advising as to surrogacy arrangements, the potential pitfalls could be properly highlighted at the right stage, i.e. before the child is conceived.
2. End the Ban on Commercial Surrogacy
Commercial Surrogacy is a concept that understandably makes many uneasy, conjuring images of children being bought and sold, and vulnerable mothers being exploited for profit. And these are valid concerns.
But the reality is that many countries already allow commercial surrogacy, and many British couples are making use of it, leaving the courts in a position where in order to protect the child they have to approve arrangements that the law would otherwise prohibit. In that sense, the genie is out of the bottle.
That does not mean that all such arrangements should be endorsed, whether legally or ethically, and an approach can be taken to ensure as far as is possible that no one is exploited by this process. Already, when taking into account money paid in commercial surrogacy arrangements overseas, the court here will not approve anything that looks like the process of buying a child, nor where it might be that the sum was significant enough to override the free will of the surrogate mother. It is still possible to approach commercial surrogacy from within an ethical framework.
3. Greater International Co-Operation
Many couples are entering into surrogacy arrangements overseas, and the conflicting approaches between countries can lead to serious consequences, as this cases highlights. An international treaty signed by those countries which allow surrogacy would provide for a set of minimum standards and requirements, and provide for greater mutual legal recognition. It provide greater clarity for couples travelling overseas as to what they need to prepare for, as well as helping establish a proper ethical framework to help ensure that the women who act as surrogate mothers are not exploited.
Such changes to our laws will not be without controversy, but something needs to give as the current system is not working as it should. By failing to update them to keep pace with the reality of domestic and international surrogacy, we are failing to prioritise the welfare of the children born as a result of such arrangements, an outcome that cannot be allowed to continue.