The Surrogacy Series: Exploring the past, present and future of Surrogacy
The 1st – 7th August marks National Surrogacy Week in England & Wales. Irwin Mitchell’s Fertility Team of Excellence will be posting a series of articles exploring the past, present and future of surrogacy laws. Today our expert, Grace Mullis, meets with colleague, Chris Hurlston, to discuss his personal past experience of international surrogacy.
Surrogacy Overseas – A Personal Account
Irwin Mitchell’s Family Team and IM Equal employee network have joined together up to provide insight of a personal, honest account of the path to parenthood through International Surrogacy.
Whilst the Government proposed a new pathway for domestic surrogacy last year, which seeks to provide intended parents with greater certainty and an ‘easier’ transfer of parenthood, many couples are still choosing to explore international surrogacy when growing their family. This article dives into our colleague’s past personal experience (the who, what, where and how of the process) to understand why this might be the case, and what things they suggest people/couples embarking on that process should consider.
Who
Chris Hurlston, Senior Associate in the medical negligence team and co-chair of IM Equal, kindly shared his honest account of his and his partner’s experience of having their children through two separate international surrogacy arrangements.
IM equal is a group for LGBTQ+ (lesbian, gay, bi, trans, queer, and questioning) and ally employees. Chris works incredibly hard with IM Equal to provide a source of support for colleagues, to make IM a more inclusive place to work.
Chris met with Grace Mullis, family solicitor from the IM Fertility Law team of excellence to discuss his first-hand experience of international surrogacy and his views on the proposed reforms around domestic surrogacy.
What
Chris and his partner embarked on their path to parenthood around 14 years ago through surrogacy, and now have two beautiful children, aged 13 and 9.
Like many same-sex couples, Chris and his partner made the decision to grow their family with a surrogate, as this allowed the opportunity for one/ each of them to be the biological parent of their child/children (Chris confirmed that on each occasion, donor eggs were used with Chris’/his partner’s sperm). Being biologically connected to their children was important to them. From speaking with Chris, it was clear that the wider benefits, of providing genuinely life changing funds and future support to the surrogate and her family, were also really important to him.
Where
Chris’ surrogacy journey started in 2011 when he saw a brochure from an American surrogacy clinic. Unlike in England & Wales, commercial surrogacy (where the birth mother/ surrogate is paid for the service of carrying another’s baby) is legal and widely practised/ regulated in the US. A contract is drawn up which provides both the surrogate and intended parents with clear terms of the surrogacy arrangement, including the monetary compensation the surrogate will receive for carrying the child.
In complete contrast, commercial surrogacy in England & Wales is illegal, and only ‘reasonable expenses’ can be paid to the surrogate by the intended parents. This means that neither a potential surrogate or the intended parents can advertise their position (of wanting a surrogate or being willing to be a surrogate) - as they would be committing a criminal offence. Instead, the route to surrogacy must be through building relationships with potential surrogates - usually via fertility clinics and surrogacy agencies, which can of course take a significant amount of time. Chris found that the boundaries of surrogacy in England were not clear in 2011, and that the process was restrictive. Chris felt uncomfortable building what felt like a ‘forced’ relationship with a potential surrogate, without clear terms and expectations – it felt like a gamble. Chris’ and his partner had experienced homophobia when using one private fertility clinic and were worried they may be at a disadvantage when using a surrogacy agency.
This experience is not an isolated example and are some of the reasons that many couples consequently choose to go overseas to countries where commercial surrogacy is legal and regulated, like the US. On their research, however, Chris and his partner found that there was no certainty on how much they would end up paying in the U.S., and it was potentially an extremely expensive route for them (costing in the region of £125,000 - £160,000 at the time).
Chris’ partner is of Indian heritage, and they therefore explored India due to their cultural connection. There was no clear way to start the process – but they persevered. In 2011, Deli in India became the birthplace of Chris and his partner’s first baby girl. They had already sought legal advice in England & Wales, so were aware that they were required to apply for a Parental Order in order to become their daughter’s legally recognised parents. At the time, commercial surrogacy was legal and widely used in India. However, in 2015, India made commercial surrogacy illegal (which later came into regulation in 2020 when the Surrogacy (Regulation) Bill was passed).
Three years later, Chris and his partner were looking to grow their family and have another child, and due to India no longer allowing international surrogacy services, and the movement towards banning commercial surrogacy, Nepal instead became the birthplace of their son in 2015. Then in 2016, Nepal banned surrogacy services for foreign nationals.
This shows the volatility of the legislation around surrogacy across the world over time, and illustrates just one of the many complexities for couples considering surrogacy overseas – and in some cases, this legal change can take place during a surrogacy journey adding an additional layer of complexity/uncertainty and stress to intended parents. It is therefore essential for any couples considering surrogacy overseas to seek legal advice on the legislation of surrogacy in their chosen country and, importantly, how this is then received by England & Wales – together with immigration advice in both jurisdictions, to ensure that the baby can be removed from the originating country, and be brought into England & Wales.
How
In the hope to help other individuals/couples who are considering embarking on surrogacy overseas, Chris revealed some of the joys and hurdles him and his partner faced when building their family:
- Ethical concerns: Like many couples, Chris and his partner were concerned about the ethical issues surrounding surrogacy – exploitation of surrogates (and also intended parents who may be willing to go to great lengths to have a child), homophobia of clinics, and the lack of privacy throughout the entire process. For example, Chris explained that during the initial stages of fertility/ disease tests and meeting doctors in both England and India/ Nepal, even before they were introduced to the surrogate, they had faced the difference in foreign hospitals/ clinics and truly how intrusive this process was going to be. Chris said at the start it felt like a “minefield”, and both he and his partner felt that it was their responsibility to navigate the ethical issues along the way, to ensure that they were making informed decisions about which doctor, clinic, and surrogate to choose. Chris explained how they conducted their research and that speaking with trusted professionals was key and would strongly recommend building trusted relationships with the professionals involved before proceeding. Chris shared that on reflection of the process and their communications with the surrogates, and their families – an incredibly rewarding part of international surrogacy was that he could clearly see the impact which the funds from the surrogacy were going to have on the surrogates’ lives. They knew that the money involved, and the contractual nature of those funds, was genuinely life changing for the families. Chris recalls that when the prospect of banning surrogacy in India was afoot, there were protests from would-be surrogate women, who wanted the opportunity to be surrogates. It is important to note here that during the application for a Parental Order in England & Wales, the surrogate is required to provide their consent to the making of the Order – therefore, contact with the surrogate in international arrangements is crucial throughout the process, and even after baby arrives.
- Unsuccessful conceptions: Chris told us that after the months of research, flying back and forth, hours with doctors, and understandably filling themselves with hope that the pregnancy journey had finally begun - they sadly had two attempts of conception which did not result in a pregnancy. Chris explained this was of course emotional and discussed the resilience of starting the process again – Do you go to another doctor? Another area? Another surrogate? The rollercoaster of getting to a ‘successful’ pregnancy is something many couples experience, however with international surrogacy there is the added difficulty of being so far away from the surrogate and future child.
- The unexpected: 7 weeks before their daughter’s due date, Chris and his partner received news that the surrogate had gone into early labour. So as well as feeling incredibly stressed regarding their worry that the surrogate and their daughter were going to be ok; because of the overseas arrangement, it also caused practical issues including: their flights to India which has already been booked closer to the due date, time off work which had already been requested and authorised, and immigration arrangements. Fortunately, both the surrogate and their daughter were healthy and well, but this had meant that Chris and his partner were unable to be there for the birth of their child. Surrogacy overseas, and that added layer of distance means that couples cannot always be prepared for the unexpected events of pregnancy in the same way of domestic births.
Chris explained that they experienced this again during their son’s pregnancy, as the Gorkha Earthquake of Nepal happened in 2015. Again, both the surrogate and their baby were safe and well, but Chris described the entire process as extremely emotional and turbulent.
The legalities: When couples have a child through international surrogacy, the surrogacy contract is not enough for the intended parents to be legally recognised as the child’s parents in England & Wales. The couple must obtain a Parental Order from the UK courts – and only at this stage will the intended parents obtain legal parenthood and parental responsibility for the child, and extinguish the status of the surrogate (and her spouse/civil partner if applicable) as the child’s legal parent. In many cases to date, this process must be completed after the child is born, but before the child obtains a British passport and travels to the UK – it is therefore important that couples obtain legal advice both in respect of the Parental Order process as well as the immigration issues that arise in this scenario.
Chris explained both experiences of obtaining a Parental Order for his children, in 2011 and then again in 2015 – which him and his partner applied for themselves. They described the experience to be intrusive, and just another example of the need to ‘prove’ themselves; being asked their detailed plans for the future including what would happen to their children if their relationship ended. Chris says the timing of this application being after your child is born, makes the process even more pressured as you are still adjusting to life with a newborn baby, and after just completing a lengthy immigration process. We recommend couples embarking on this journey seek legal advice as early as possible, so that they can be aware of the process ahead and collate/ prepare any documentation; in readiness for when they can first apply to the family courts for a Parental Order.
When Chris’ daughter was born in India, he explained that the process of obtaining his daughter’s passport and British citizenship took 7 weeks, and therefore his daughter could not leave New Deli until she was 7 weeks old. At this time, parental laws were different and if you were not the biological father of the child then you were unable to take paternity leave. Although Chris was not the biological father of his daughter, his employer did offer some flexibility by allowing two weeks of leave. However, Chris was unable to get any further time off of work other than annual leave and therefore couldn’t be with his daughter in India for all of this period. By the time that Chris’ son was born in 2015, the law had developed and Chris was able to take 12 months’ adoption leave.
Chris explained the immigration process when their son was born, in Nepal. He describes the immigration process on this occasion to be an extremely lengthy process on the UK side. The next steps consisted of DNA testing, courier of the DNA material to a UK clinic for analysis, consent forms of the surrogate and her husband (which is essential for obtaining a Parental Order), and further approval from the doctor in Nepal. Chris described quite chaotic scenes of running to the FedEx drop-off point so that the DNA material could be processed in the UK, a necessary part of the application for their son’s British citizenship and his British Passport. The applications in total took a mammoth 3 months to process and that was after considerable chasing and even involvement of their MP as well as an interview at the British Embassy. After obtaining his British passport there was a further delay when the Nepalese Department of Immigration refused to provide an Exit Visa, which delayed them by another month. Nepal’s laws around international surrogacy was on the crux of change. To apply pressure on to HM Passport Office, Chris and his partner applied simultaneously for a Parental Order whilst still in Nepal. The family court Judge in the UK requested that HMPO expediate the passport process. The making of the Parental Order was also transferred to the High Court in London. Chris and his partner obtained legal advice and counsel opinion to navigate the court considerations, unique in these circumstances where the birthplace of the child and home of the surrogate was on the edge of banning international surrogacy. Thankfully, the Judge who heard the case, Chris describes, was incredibly meticulous, and following further intrusive questioning on things like Chris and his partner’s finances – the Judge approved their Parental Order. Before the final hearing for a Parental Order, the passport had been granted and Chis and his son were back in the UK in time for the final hearing.
Chris’ children are now 13 and 9.
When (and change in future reform)
Chris’ journey from 2011 and 2015 demonstrates the ever-changing attitudes and legalities surrounding the surrogacy journey, and the importance of understanding how to properly navigate what can feel like the wild-west of a process. For the rest of surrogacy week over the next few days, the Irwin Mitchell’s Fertility Team of Excellence will be sharing more on the present guidance and future reforms – watch this space!
