International surrogacy: new HFEA guidance and the dangers of oversimplifying a complex picture

The pandemic has thrown a spotlight on international surrogacy. The sudden restrictions in 2020 on international travel have prevented parents from getting to the births of their surrogate children, and stopped travel for the purposes of conception. In response, foreign governments have had to make exceptions to travel bans to allow expectant parents through surrogacy to reach their newborns. The UK government has also created a new emergency UK passport application process to help British parents bring surrogacy babies home.

Most recently, the HFEA has confirmed that it will update its guidance on exporting gametes and embryos to clarify that fertility clinics can lawfully do so for the purposes of 'commercial' surrogacy under the existing General Direction rules. UK fertility clinics no longer need to ask whether intended parents plan to compensate their surrogate or to use a paid surrogacy agency. This is good news for intended parents wishing to send sperm or embryos overseas for surrogacy while they cannot travel themselves.

The need for such actions shows that international surrogacy is a reality which cannot be ignored. In England, the family court currently makes around 200 parental orders each year following international surrogacy arrangements (although this may only reflect a part of the true number of cases), a number which has grown significantly since the first international surrogacy case in 2008. 

Why is international surrogacy so popular for UK parents? Research, conducted by the University of Cambridge and Brilliant Beginnings in 2018, found that the most common reasons for UK parents choosing international surrogacy were the lack of professional services for matching in the UK (69 percent), the lack of legal certainty available at the outset that intended parents would ultimately be the legal parents of their child (67 percent) and the shortage of UK surrogates (40 percent). International surrogacy can therefore be seen largely as a response to the deficiencies of the UK framework, in which the law makes surrogacy agreements unenforceable, gives the surrogate legal motherhood at birth, and makes the process of finding a suitable surrogate uncertain and largely informal. However, international surrogacy is often portrayed negatively, wrapped in the policy myth that UK surrogacy is preferable to international surrogacy. By way of example, the Law Commission's provisional recommendations for surrogacy law reform, published in June 2019, stated: 'We hope that one of the consequences of our reform of UK law will be to reduce the incidence of international surrogacy arrangements.' 

Categorising international surrogacy in such a way overlooks the full spectrum of modern surrogacy experience and does not incorporate an understanding of why many UK parents feel they have no alternative than to look overseas. To manage surrogacy better, we need to shift from categorising surrogacy as altruistic or commercial, domestic or international, and instead ask how to ensure it is ethical. This involves a number of key questions: Is there fully informed consent and a healthy balanced relationship between the intended parents, surrogate and any intermediaries involved?  Is there a strong direct relationship between the intended parents and the surrogate, based on honesty and transparency? Are any professionals involved regulated and do they add valuable input in respect to safeguarding, screening and support? And most importantly, are the child's rights and welfare put centre stage to ensure children are born with secure legal status, a positive and honest conception story and access to information about their birth story?  

In the UK, the existing surrogacy framework enables close relationships between parents and surrogates and long-term openness, but there are few safeguards at the start to ensure that surrogates are suitable or give fully informed consent, with many matches happening informally via social media and a legal process which takes place entirely after the birth.

Internationally, there is a range of experience in respect of these ethical questions. In some places, there may be a significant wealth and cultural imbalance between the parties, and commercial intermediaries which control the process rather than facilitating a relationship (particularly in places like India, although international surrogacy has been prohibited there since 2015, and other poorer countries where surrogacy is largely unregulated).

However, there are also examples of robust ethical standards. Certain US states, for example, require surrogates to have independent legal advice, psychological screening and a significantly more stringent medical screening than in the UK. The involvement of regulated professionals is a safeguard, and the compensatory environment means that there are enough women choosing to become surrogates to apply high standards of medical and psychological suitability, making surrogacy safer for everyone. Relationships between parents and surrogates are strong, direct and enduring, with University of Cambridge research finding that over 95 percent of parents through both UK and US surrogacy reported positive relationships with their surrogates after the surrogacy process. The UK Supreme Court has recently endorsed the US approach, ruling that it is no longer against public policy for UK parents to engage in commercial surrogacy, provided that the country in question has a well-established system which properly safeguards the interests of all involved.  

It is important to understand that surrogacy, both in the UK and overseas, presents a complex and nuanced picture which, like any human experience, involves good and bad practices. To help us understand and manage it well, we need to graduate beyond the silos of altruistic or commercial, and domestic or international, and instead start asking hard, practical questions about how to ensure ethical surrogacy practice. As 2020 has shown us so clearly, international surrogacy cannot be ignored.