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Why it’s so important to get legal advice when arranging surrogacy abroad

Why it’s so important to get legal advice when arranging surrogacy abroad

Over the last six years surrogacy has become a more mainstream family building option not just for heterosexual couples who cannot conceive naturally but also for gay parents (both couples and singles) who wish to have parental autonomy.

In 2010, the law in the UK changed to allow two male parents to be named together on a birth certificate following a surrogacy arrangement – a significant step forward for gay parents.

However, the law still lags behind for single parents through surrogacy who are not prohibited from conceiving in this way but are denied the legal solution – the parental order – which extinguishes a surrogate’s parental status and reassigns it to the intended parent/s.

Early advice can help to navigate through these issues. Similarly for couples, unbiased legal and practical help is valuable to ensure that an informed decision can be made and common pitfalls avoided.

Although surrogacy is possible within the UK it is heavily restricted. Surrogates and parents are not able to advertise that they are looking to undertake a surrogacy arrangement, the payments made cannot be more than reasonable expenses and surrogacy contracts are not enforceable.

This makes it notoriously difficult to pursue a surrogacy arrangement within the UK, unless you have a willing volunteer among your friends or family. There are surrogacy organisations that exist to help intended parents in this way (including our own – Brilliant Beginnings), albeit they must operate on a non-profit making basis.

Put off by the woolly legal and practical framework, many UK potential parents flock abroad to surrogacy-friendly destinations where it is much easier to find a surrogate, where contracts are legally enforceable (offering a greater degree of protection against a surrogate changing her mind) and where commercial payments are permitted (for both surrogates and egg donors).

The USA is the most popular of these destinations for gay parents (particularly since India and the Ukraine shut their doors to all except heterosexual married couples over the last couple of years), although in practice less well-established destinations such as Thailand are utilised.

The recent, well-publicized case involving Gammy, a little boy born with Down’s Syndrome in Thailand, has highlighted a number of the pitfalls associated with such destinations where there is no supportive legal framework for surrogacy (nor, until now, a system in place to restrict it).

The Australian intended parents involved in this case commissioned a surrogacy arrangement in which twins were conceived. It is believed that the four-month scan revealed that one of the foetuses had Down’s Syndrome. At this stage the Australian parents asked the surrogate to have a termination but, due to her religious beliefs, she refused.

After birth, the parents arrived in Thailand to collect their daughter, but left their Down’s Syndrome son, now known as Gammy. Gammy remains with the surrogate, who has vowed to care for him despite the fact that he has several health conditions. These include a heart defect requiring imminent surgery. So far, hundreds of thousands of pounds have been raised by well wishers across the globe, through online donations, to pay for Gammy’s surgery.

Although an incredibly sad story, this scenario is very rare in practice. However, the pitfalls of travelling to unregulated destinations where there are no established safeguards in place for parents, surrogates or children are palpable in this case. Early advice is crucial to ensure that parents can make an informed decision about which destination to choose.

Natalie Gamble Associates are leading lawyers for same-sex parents, giving support at the outset, during and after surrogacy arrangements. There is more information about the legal side of this on the firm’s website and on the practical side on Brilliant Beginnings’ website