In a High Court ruling published today (another NGA landmark case), Mrs Justice Theis has issued a public warning to parents of children born through international surrogacy that they must apply to court in the UK.
She said: “The legal relationship between children born as a result of surrogacy arrangements and their intended parents is not on a secure legal footing without [a UK parental order] being made. That can have long term legal consequences for the children… The message needs to go out loud and clear to encourage parental order applications to be made in respect of children born as a result of international surrogacy agreements, and for them to be made promptly.”
Mrs Justice Theis was granting parenthood to a gay couple (civil partners) who had conceived twins through surrogacy in California. She said: “I am entirely satisfied the applicants have acted in good faith at all stages. Their journey to have a family has clearly been a long and arduous one, both emotionally and financially. They are a loving and committed same sex couple with a stable home environment.”
The judge published her decision to send a message that British parents through surrogacy must, like this couple, deal with UK law properly. As we well know at NGA, increasing numbers of prospective parents are travelling to places like California where professional surrogacy agencies manage the process (unlike in the UK, where it is a criminal offence for third parties to broker surrogacy arrangements for profit). California offers legally binding surrogacy contracts and a birth certificate naming the intended parents. But UK law does not recognise Californian law, instead treating the surrogate and her husband as the parents no matter what the US birth certificate says. The British parents then need a parental order from the UK family court to become the legal parents in the UK.
Without it, they have no right to make decisions as parents and may be caring for their child illegally. Their child may lack basic legal rights to inheritance, child support and British nationality. If the parents do not apply to court within six months of the birth, they lose the chance of getting a UK birth certificate forever. It is not known how many UK parents may already be in this position.
In this case, the parents had followed UK legal procedures properly and the court made a parental order in their favour. The surrogate – in accordance with Californian law – had been paid $56,750 plus expenses. Payments for surrogacy are not illegal under UK law, but if more than ‘reasonable expenses’ is paid the court has to weigh things up carefully before making a parental order. This is not the first time the High Court has ‘authorised’ a commercial payment to a foreign surrogate, although the amount in this case was larger than in any previous case. It is lawful to pay a surrogate an inconvenience fee in California. Payments are usually lower ($25,000 to $30,000 being typical) which is in practice often not much more than the £10,000 to £15,000 commonly paid to UK surrogates. As the judge explained, the payment in this case was exceptional because the parents, following a difficult fertility journey, had selected an experienced surrogate. She subsequently carried twins and gave birth by caesarean. The judge, having assessed the facts carefully, was satisfied that the surrogate was a “mature woman with financial means. She had legal advice before entering into the agreement and was able to command a higher compensation fee because of her proven track record”. Making an order was therefore not an affront to public policy and was justified because it ensured the children’s lifelong security.
Natalie Gamble, solicitor for the parents, comments: “Surrogacy law in the UK desperately needs to be updated to deal with the realities of the global fertility market. Our current law was written more than 20 years ago before any of these scenarios were dreamt of, and there is no logical fit between the law here and the law abroad. It is easy for parents to overlook the need to deal with UK law as well as US law, and if they do, the legal status of their children may be permanently compromised. The court is rightly very worried about that. All parents planning international surrogacy arrangements need the right information about the law, and they need it in time.”