I have written a few pieces about overseas surrogacy this year , which probably reflects that more of these arrangements are being made, or at least that more of them are going wrong.
about a commercial arrangement with the Kiran agency to have a surrogacy in India. (I would urge some careful research before you pick your agency in India)
https://suesspiciousminds.com/2014/05/16/commercial-surrogacy-iowa-and-an-unforseen-difficulty/ about a tricky commercial surrogacy in Iowa, that went wrong because the Iowa procedure is that the commissioning ‘parents’ adopt the child, which breaches English law on arranging adoptions overseas.
https://suesspiciousminds.com/2014/07/02/yet-more-international-surrogacy/ about a commercial surrogacy in Georgia, where the Georgian organisation seemed incapable of answering a straight question about whether the surrogate mother was married.
There has been the obvious scandal this week about baby Gammy
The story here is that an Australian couple entered into a surrogacy arrangement with commercial elements in Thailand. The surrogate mother gave birth to twins, one of whom, Gammy, has Downs Syndrome. The story (though it is refuted) is that the Australian couple took the other twin but would not take Gammy. There are calls for commercial and overseas surrogacy to be better regulated.
I would not want to demonise surrogacy in the flurry of outrage about this particular case. It works for many people and provides a legitimate way of someone to concieve and care for a biological child if they are incapable of physically carrying a child of their own, for example.
So first, what IS surrogacy?
It involves having a woman become pregnant, carry the baby, give birth and then give the baby up. But most importantly, the persons to whom the baby is given to have provided either the sperm or the eggs, or both, to make the fertilisation possible. I.e one of the people who will be caring for the baby will be a genetic parent to that child. If there isn’t a genetic link by the provision of either sperm or eggs, that isn’t surrogacy. That’s just straight out buying a baby.
In England, surrogacy is legal, although the commercial element is highly regulated. A person can’t pay for a baby, nor can the surrogate mother charge a fee. What is legitimate is a payment to cover legitimate and genuine expenses involved.
section 2 of the Surrogacy Arrangements Act 1985 which says :
2 Negotiating surrogacy arrangements on a commercial basis, etc.
(1)No person shall on a commercial basis do any of the following acts in the United Kingdom, that is—
(a) initiate or take part in any negotiations with a view to the making of a surrogacy arrangement,
(b) offer or agree to negotiate the making of a surrogacy arrangement, or
(c) compile any information with a view to its use in making, or negotiating the making of, surrogacy arrangements;
and no person shall in the United Kingdom knowingly cause another to do any of those acts on a commercial basis.
Anyone purporting to run a Surrogacy Agency in the UK, or to charge an introduction fee or arrangement fee fo surrogacy is doing so illegally.
The Human Fertilisation and Embryology Authority has some very good guidance about Surrogacy, here
Overseas, however, it is lawful in some countries to have an Agency to put prospective commissioners together with prospective surrogates, and to charge a fee for doing so. As happened here.
Here are the two major issues with Surrogacy for the ‘commissioning parents’, particularly where it is overseas
1. If the biological / birth mother gives birth and then does not want to hand the child over, it is easy to get embroiled in difficult litigation over it. The existence of a ‘contract’ or ‘agreement’ to hand over the baby isn’t going to be determinative of it, things will depend very much on the law in that country and the mother’s ability to look after the child. It can be very protracted, confusing and expensive.
2. To ensure that both ‘commissioning parents’ have legal rights to the child in this country, an application to an English Court has to be made. That’s an application for a Parental Order. Here is the really important bit. That application MUST be issued before the child is six months old. If it is issued six months and one day after birth, it is too late. You can’t get your Parental Order. The Court has no power to cut you some slack or let you off. That six month cut off is a real deal. So you have to be organised. Also, your application has to cover all of the necessary details – getting evidence that the Surrogate mother is not married, that she is the genuine mother of the child and that she genuinely consents is all vital. And for that, given that the Surrogate mother is overseas, you can be entirely dependent on the Surrogate Agency being good. (they aren’t always)
One of the things the Court will have to do in the consideration of the Parental Order is look at the fees that you paid. This is a scrutiny to make sure that you paid a reasonable and fair amount, and importantly that it wasn’t such a high amount that it becomes ‘buying a baby’ – i.e that the sum offered is so much that the Surrogate mother is not simply doing this as a purely commercial enterprise. As a matter of public policy, the Government don’t want people buying and selling babies. And when it comes to ‘buying’ a baby from a country that has substantial poverty and different standards of living that becomes even more sensitive.
Here are the guidelines for Courts when approving such payments (which remember is retrospective – after the money has been paid and the baby handed over)
When considering whether to authorise the payments made in this case the relevant principles are firmly established by the cases, starting with Re X and Y (Foreign Surrogacy)  EWHC 3030 (Fam)  2WLR 1274 (paragraph 19 and 20) and the cases that have followed (in particular Re S (Parental Order)  EWHC 2977 (Fam), Re L (Commercial Surrogacy)  EWHC 3146 (Fam),  2WLR 1006 Re IJ (Foreign Surrogacy Agreement Parental Order)  EWHC 921 (Fam)  2FLR 646 and Re X and Y (Parental Order: Retrospective Authorisation of Payments)  EWHC 3147 (Fam)).
(1) the question whether a sum paid is disproportionate to “reasonable expenses” is a question of fact in each case. What the court will be considering is whether the sum is so low that it may unfairly exploit the surrogate mother, or so high that it may place undue pressure on her with the risk, in either scenario, that it may overbear her free will;
(2) the principles underpinning section 54 (8), which must be respected by the court, is that it is contrary to public policy to sanction excessive payments that effectively amount to buying children from overseas.
(3) however, as a result of the changes brought about by the Human Fertilisation and Embryology (Parental Orders) Regulations 2010, the decision whether to authorise payments retrospectively is a decision relating to a parental order and in making that decision, the court must regard the child’s welfare as the paramount consideration.
(4) as a consequence it is difficult to imagine a set of circumstances in which, by the time an application for a parental order comes to court, the welfare of any child, particularly a foreign child, would not be gravely compromised by a refusal to make the order: As a result: “it will only be in the clearest case of the abuse of public policy that the court will be able to withhold an order if otherwise welfare considerations support its making”, per Hedley J in Re L (Commercial Surrogacy)  EWHC 3146 (Fam),  2WLR 1006, at paragraph 10.
(5) where the applicants for a parental order are acting in good faith and without ‘moral taint’ in their dealings with the surrogate mother, with no attempt to defraud the authorities, and the payments are not so disproportionate that the granting of parental orders would be an affront to public policy, it will ordinarily be appropriate for the court to exercise its discretion to give retrospective authorisation, having regard to the paramountcy of the child’s lifelong welfare.
It is worth noting that the sort of amounts sanctioned by English Courts this year have been approximately £20,000, which went to an Agency in India. (The Agency kept nearly all of that, with about £4,000 going to the Surrogate mother).
In England, £4,000 is not out of line with what one might pay a Surrogate Mother in terms of expenses, but £4,000 probably is a substantial amount more in India in terms of buying power. How confident can we be that this is not exploitative, and essentially ‘buying’ a baby?
I’d certainly urge anyone contemplating surrogacy overseas to get their own legal advice, and probably to contact the HFEA for help and guidance. There are better places than others when considering overseas surrogacy, and certainly better agencies than others.