What are the best interests of the child in international surrogacy?

As the surrogacy industry grows, so too do calls from parts of the consumer lobby, fertility industry and others for a loosening of international and domestic restraints on surrogacy arrangements. A consequence of this is the potential marginalisation of the best interests of children. Last month a roundtable was convened by the Project Group on Assisted Reproduction (PROGAR) and funded by the Society for Reproductive and Infant Psychology (SRIP), to discuss this issue.

The meeting drew representatives from five government departments, and international and domestic social work and professional bodies, lawyers, academics and consumer groups were all represented, reflecting growing interest and concern both in the UK and internationally. Recently the European Union has commissioned a report into surrogacy arrangements in member states (1), International Social Services (2) declared international surrogacy as a particular focus of interest, and The Hague Conference on Private International Law (3) is currently deliberating whether to develop a Convention on international surrogacy, as for international adoption. Our own research has revealed considerable shortcomings with official UK data regarding international surrogacy arrangements, such that they are inadequate to build a profile of the parties involved (4-6).

The potential scale of international surrogacy in the UK became evident as the meeting was advised that more than 1,000 babies may be brought into the UK each year, thus confirming media reports (7). However the overwhelming majority of commissioning parents do not subsequently apply for a Parental Order for transfer of legal parentage. Consequently, many surrogate children may be raised by parents who carry either no or incomplete legal parental status.

Participants highlighted a range of actual and potential problems for surrogates, commissioning parents and children caused by the status quo, especially where surrogacy arrangements take place in jurisdictions that do not adhere to UK standards of care and/or where UK legal provisions regarding parentage and access to information about the surrogate do not apply and/or where surrogates are drawn from socio-economically disadvantaged communities.

The meeting provided an opportunity for at least tentative proposals for a way forward, including support for an International Convention on Surrogacy, along the lines under consideration by the Hague Conference on Private International Law. However, it was recognised that this was more of a long-term response and that bilateral agreements between individual countries willing to address the issues may be more feasible in the shorter-term.

Additionally, the international multi-disciplinary infertility community could be encouraged to develop and adopt codes of practice and basic minimum standards for health care professionals providing surrogacy services. Lessons from international adoption could be applied, such as enhancing staffing in UK embassies/consulates in countries which are known to be particularly problematic. Additionally, obtaining a Parental Order could be made a prerequisite before a passport is issued for the child.

In the UK, many surrogate children may be at risk through having insecure legal parentage. It was recognised that the reasons for this could include inadequate knowledge and the disincentives for applying for a Parental Order. For example, more standardised information for potential commissioning parents could be provided across the various government departments that have an involvement in international surrogacy. Parents who are responsible for the care of a young baby may also be deterred by the time-consuming and expensive process of obtaining a Parental Order (via the High Court in the case of an international surrogacy arrangement) and which some may think is unnecessary if they have already obtained a court order and/or birth certificate in the country of the child’s birth.

Remedying these problems was identified and considered a priority for action, requiring increased joined-up thinking and practice. In summary, much needs to be done to ensure that the best interests of children are prioritised in international surrogacy arrangements. This roundtable was one step along the way to achieving this.