Passport to Parenthood: Navigating International Surrogacy Arrangements
In a recent international surrogacy/adoption case, Re Z (a Child) [2024] EWFC 304, Mrs Justice Theis DBE offers an important “cautionary reminder of those embarking on surrogacy arrangements, particular those that cross a number of different jurisdictions, to carefully consider, in advance, the arrangements, consequences and implications of that arrangement”. This case considered, inter alia, whether the applicants’ conduct, in engaging in a surrogacy arrangement abroad in a country where surrogacy is illegal, amounted to a breach of public policy which may have prevented a parental order from being made.
This case underscores the complexity inherent in international situations where intending parents do not take adequate advice in all relevant jurisdictions in advance of any arrangement. In the UK, approximately 50% of surrogacy arrangements involve foreign jurisdictions. In the absence of any international framework, the determination of legal parentage is based on fragmented and often conflicting domestic laws of multiple countries. Laws concerning parentage are dependent on the highly unique socio-cultural contexts of different countries. For instance, while same-sex couples can undertake a surrogacy arrangement in England, this is not the case in other countries like Georgia and India.
The Law Commission’s Report “Building families through surrogacy: a new law” published in March 2023 has made various constructive recommendations covered in detail in Dr Michael Wells-Greco’s piece. In summary, these include, inter alia, introducing a new regulatory pathway for domestic surrogacy arrangements which would enable intended parents to be recognised as legal parents of the child from birth; bringing no-profit surrogacy organisations under the HFEA and making them responsible for oversight of individual surrogacy arrangements under the new pathway; and creating a new Surrogacy Register to give children born through this process an opportunity to trace their origins. However, no legislative proposal to respond to the Law Commission’s overall recommendations is on the parliamentary calendar.
The current lack of international harmonisation with respect to legal parentage in cases of surrogacy raises several issues. This includes difficulties obtaining legal status or parentage orders for a surrogate-born child, obstacles in acquiring passports/travel documents to return home (to the UK) with an overseas surrogate-born child, and challenges in acquiring and exercising parental responsibility where public policy issues are at play (for instance, where the child is born as a result of an illegal surrogacy arrangement in a foreign jurisdiction, as was the case in Re Z).
Due to increasing concerns about surrogate-born children’s unclear legal parentage, the Council on General Affairs and Policy (CGAP) of the HCCH decided in 2023 to establish a Working Group to develop an international legal instrument to address this problem. The Working Group on Parentage/Surrogacy has met three times to consider a possible draft text for a treaty instrument. The challenge for that Group is how to draft an instrument which provides greater predictability, certainty and continuity of legal parentage in cross-border cases while considering and protecting the rights and interests of all stakeholders involved and accepting the diverse views and approaches to surrogacy worldwide. It is reported that the Working Group is also exploring mechanisms such as treaty declarations to provide a mechanism for states to address specific public policy concerns. The Working Group is scheduled to reconvene this month (April 2025) to continue its important mandate.
While it is widely recognised that current UK surrogacy laws are not fit for purpose, there appears to be limited parliamentary appetite to initiate legislative reform imminently. UK legislation can only achieve so much. Respecting and promoting the rights of all parties in cross-border surrogacy cases – surrogate mothers, surrogate born children and intending parent(s) – requires international cooperation. Without that, we are likely to continue to see further “cautionary reminders” in England and elsewhere.
