International surrogacy law: existing conflicts unresolved

The current conflict in Ukraine has drawn into sharp focus the myriad of problems that international surrogacy can throw up. Very little looks certain for the children, surrogates, and intended parents affected by the conflict in Ukraine, other than the fact that difficult practical and legal questions will hang over these families for months and years to come.

Differences between jurisdictions in the laws surrounding surrogacy arrangements have caused problems for families for years, as the recent international surrogacy law case of Re X,Y and Z (Children: Parental Orders: Time Limit) [2022] demonstrates. The case, which straddled multiple jurisdictions – California and Oregon in the USA, Denmark, and the UK – clearly highlights the ongoing vulnerability of surrogate-born children with questions over their legal parentage. It also brings into close focus the need for law reform to stop more surrogate born children and their intended parents falling victim to complex international conflicts of law.

At the heart of Re X, three children and their intended parents encountered serious legal problems because their US parentage orders (from Oregon and California where the children were born through commercial surrogacy arrangements) were not legally recognised in Denmark where the family was living or elsewhere in the world. While the childrenˈs British biological father was recognised as their legal parent in Denmark, Danish law still recognised their married US surrogates as legal mothers meaning their Danish non-biological father had no legal status as a parent in Denmark. Danish legal restrictions around surrogacy prevented the childrenˈs Danish father from acquiring legal fatherhood under Danish law. This international conflict of law left the children with unresolved legal parentage and without Danish or initially British citizenship (only US citizenship).

The intended parents were unaware of this legal reality at first, having successfully registered their surrogate born twins in Denmark in 2017 upon their return home and secured Danish citizenship and passports for them believing this to be legal. It was only when they came to register their third surrogate born child in Denmark in 2019 that they discovered that the twins had been registered in error. This triggered an investigation of the family by the Danish authorities who went on to rescind the twinsˈ Danish citizenship and passports and to refuse to register their youngest daughter or grant her Danish citizenship.

The family's difficulties were compounded when the children's applications for British passports were initially refused due to a lack of entitlement because their US surrogates and their spouses were still recognised as their legal parents under UK law. The Danish authorities then convened a meeting in December 2020 to discuss deporting the children from Denmark, which resulted in a stay for 90 days whilst a decision was made. The children, therefore, faced the threat of deportation from Denmark at the height of the COVID-19 pandemic. The risk of deportation was only avoided when emergency legal steps were taken in the UK to obtain British registration for the children just 14 days before the UK left the European Union on 31 December 2020. The conferral of British citizenship upon the children ensured their continued rights of residence in Denmark post-Brexit, although this was not subsequently confirmed by the Danish authorities until September 2021 following family proceedings in the Danish Court.

Eventually, the family decided to leave Denmark and relocated to the UK. However, this was not the end of the family's legal struggle. The intended parents had to apply for parental orders in the English High Court in 2021 to obtain legal parentage for their children as their US parentage orders were not recognised in the UK either. These legal proceedings were complex because their court applications were made more than six months after their children's births in contravention of UK statutory criteria governing parental order applications. To add to this they were unable to prove a complete audit trail of their surrogacy payments for the twins because their first US surrogacy agency was no longer trading as a result of embezzlement by a staff member. Ultimately, the English Court granted parental orders in favour of the two fathers in Re X in respect of their children after a detailed legal assessment of all the issues. The Court found that the intended parents had acted with integrity throughout and that the statutory six-month time limit should not be applied as a 'straightjacket' to stop the grant of parental orders which were in the best interests of the children.

Despite the positive legal ruling by the English High Court in Re X, it remains of significant concern that children born through international surrogacy arrangements and their intended parents are still being left vulnerable to all manner of legal problems including: surrogate born children having unresolved or 'limping legal parentage' or in worst case scenario no legal parents due to complex international conflicts of law, difficulties when foreign surrogacy agencies unexpectedly collapse, problems with birth registration, lack of entitlement to citizenship and passports and even deportation. I first called for reform of surrogacy law in 2009 along with the need for greater awareness of the complex legal issues that can arise (see BioNews 490). Law reform is now needed more than ever given the enduring demand for surrogacy around the world and the uncertain times in which we live as a result of pandemic disruption and geopolitical conflict and war.

The Permanent Bureau of the Hague Conference on Private International Children Law continues to consider the problem of 'limping legal parentage' in respect of surrogate born children and work towards international law reform. Its Expertsˈ Group met for a tenth time from 15-19 November 2021 and discussed the content of its final report to be presented to the Council on General Affairs and Policy at its 2023 meeting. It also discussed the feasibility of advancing work for a draft Protocol on the recognition of legal parentage established as a result of a surrogacy arrangement. The Experts' Group is due to meet again this month (March 2022) to progress its work. However, it continues to be a complex legal exercise given different approaches and attitudes towards surrogacy and evolving surrogacy practices in underregulated countries around the world. As such, it remains to be seen how effective any legal measures governing legal parentage following surrogacy at an international level will be.

Louisa Ghevaert acted for the intended parents in the case.