International surrogacy has become big news. Last month, a landmark international commercial surrogacy case, Re L , attracted front page national headlines. Hard on its heels the media spotlight fell on the birth of Elton John and David Furnish's US surrogate born son, Zachary, on Christmas Day. This has fuelled the debate about surrogacy and the question is why has it generated such attention?
The decision in Re L attracted front page national headlines because it marks a significant watershed in the history of UK surrogacy law. For the first time the court has made clear that the child's welfare will trump public policy on payments. It is only the third published case of its kind to ratify a foreign commercial surrogacy arrangement. Having represented the parents in this case (as well as the first parents to secure a parental order in the case of X&Y in 2008 ) I know how difficult and sensitive these applications are and quite how much is at stake.
In Re L, a High Court judge, Mr Justice Hedley, awarded legal parenthood to the British couple who entered into a commercial surrogacy arrangement with a surrogate mother in Illinois, USA. Notwithstanding the public policy ban on commercial surrogacy in the UK (which allows only the payment of reasonable pregnancy related expenses to a surrogate, unless retrospectively authorised by the English court on a case by case basis), the judge decided that the welfare of the child (known only as 'L') was the paramount consideration.
Mr Justice Hedley ruled that legal changes last year now (for the first time) weight the balance between public policy and the welfare of the child decisively in favour of welfare except in the clearest case of abuse of public policy. He authorised the British parents' commercial payment to their surrogate and awarded them legal parenthood. In doing so, he highlighted the legal difficulties surrounding re-entry into the UK after the birth, the need for intended parents to grapple with immigration control and the continuing lack of availability of good quality information. He warned that the court would continue to police the public policy concerns and scrutinise the issue of payments carefully. He also added that the legal criteria had been 'fully met' by the 'most careful and conscientious parents' in this case.
The Telegraph covered the Re L case running front page headlines the following day entitled 'Childless couple win the right to pay surrogate mothers large sums of money to have babies for them' and voiced right wing concern about children being treated as 'commodities to be bought and sold' and the opening of floodgates.
The British parents in Re L gave an anonymous statement to the Telegraph in response explaining that 'we entered into this surrogacy arrangement after a great deal of thought and research, having exhausted all other options for having a family, and following years of fertility treatment and several miscarriages' and that 'our surrogate is a wonderful person who is now very much part of our family and will be part of our and our child's lives going forward. She gave us the most incredible life-changing gift which we will be forever grateful for'.
Having advised hundreds of people undertaking surrogacy, I know that they do so with great care and thought after years of heartbreak. Historically, many of these parents would have struggled or even failed to achieve much wanted families for a number of reasons, including medical problems or sexual orientation. Changes to the law last year have opened up surrogacy to unmarried and same-sex couples (where previously only married couples could obtain legal parenthood for their surrogate born child through the courts) and this has increased the pool of people now embracing surrogacy as a family building option.
Surrogacy is steadily becoming part of public consciousness fuelled by media coverage, the Internet and celebrity endorsement by the likes of Elton John and Sarah Jessica Parker. There is, as a result, increasingly a social and cultural sea change in the building and fabric of UK family life which challenges historical perceptions and the legal and political landscape regardless of the current legal restrictions. Those British people that cannot (or choose not to) embark upon surrogacy in the UK will cross borders to foreign surrogacy friendly destinations including US states such as Illinois and California and can lawfully do so.
Surrogacy raises sensitive issues and there is unlikely to be a quick fix. However, the current law often leaves surrogate born children and their intended parents in legal limbo, without the necessary legal status and protection they need. Parents must navigate a legal minefield and a lengthy court process at a time when they need to meet the challenges of parenthood and adjust to family life with a newborn baby.
The law is complex and was historically created to give legal parenthood to married couples undergoing IVF with donor egg or sperm. In surrogacy cases the law gives legal parenthood to the surrogate parents and treats intended parents as egg and sperm donors. Single people are barred in law from obtaining parental orders from the court (the legal solution for surrogacy) to become their child's legal parent and intended mothers have no legal entitlement to maternity leave to care for their child placing additional strain on families.
In worst case scenario, surrogate children born abroad to British intended parents can be stateless and parentless as the X&Y case graphically illustrated and risk being stranded abroad and unable to enter the UK. Whilst the recent legal changes and the Re L case represent a step forward in the balance of public policy versus payments, the ongoing media debate and obvious sensitivities surrounding surrogacy remain very real and there is still much work to be done to overcome these issues and difficulties.