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.