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International surrogacy law reform: is this achievable?

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) is currently looking at the problem of ‘limping legal parentage’ in respect of children internationally, particularly in cases arising from cross-border surrogacy arrangements. The HCCH is an intergovernmental organisation in the area of private international law, that administers several international conventions, protocols and legal instruments.

Why is there ‘limping legal parentage’ following international surrogacy?

Growing demand for surrogacy around the world and a lack of international harmonisation of surrogacy law and policy continues to affect the recognition of surrogate born children’s legal parentage. It also raises fundamental issues about children’s human rights (e.g. under the UN Convention on the Rights of the Child, Arts 7 and 8).

Attitudes and approaches to surrogacy vary from an international perspective, with certain jurisdictions allowing it on a commercial basis, some like the UK permitting it on an altruistic basis, whilst others prohibit it altogether. In the absence of consensus, international surrogacy arrangements often result in complex international conflicts of law which render surrogate born children stateless and legally parentless at birth. This can have far-reaching legal consequences for all involved: affecting the child’s birth registration, their nationality and immigration status, acquisition of parental responsibility for the child, the identity of individual(s) under a duty to financially maintain the child and the child’s inheritance rights.

What work is being undertaken by the HCCH’s Experts’ Group on Parentage/Surrogacy?

As a result of growing concerns about surrogate born children’s ‘limping legal parentage’, the Council on General Affairs and Policy (CGAP) of the HCCH decided in 2015 that an Experts’ Group should be established to seek to develop private international legal instruments to try and combat this problem. CGAP stipulated that the Experts’ Group should be geographically representative of Member States, as well as include various Observers and Members of the Permanent Bureau (PB) of the HCCH.

The Experts’ Group has met six times: in February 2016, January/February 2017, February 2018, September 2018, January/February 2019 and October/November 2019. At the sixth meeting from 29 October to 1 November 2019, the experts reaffirmed the need for international consensus and solutions to avoid limping legal parentage. They also stated that the aim of  future legal instruments would be to provide predictability, certainty and continuity of legal parentage for all involved in international surrogacy situations, taking into account their rights, the United Nations Convention on the Rights of the Child and especially the best interests of the child. The experts also endorsed the Conclusions and Recommendations reached by the Council on General Affairs and Policy (CGAP) at its last meeting in March 2019 which:

  • Supported the Group’s continued work, with a focus on proposing provisions for (1) a general private international law (PIL) instrument on the recognition of foreign judicial decisions on legal parentage (Convention), and (2) a separate protocol on the recognition of foreign judicial decisions on legal parentage rendered as a result of an international surrogacy arrangement (Protocol).
  • Stated that further study and discussion is needed to look to develop a Convention and Protocol addressing legal parentage.
  • Emphasised that any work by the HCCH in relation to international surrogacy arrangements should not be understood as supporting or opposing surrogacy.

In March 2020, CGAP renewed the mandate of the Experts’ Group for another two years. The Experts’ Group will therefore continue to develop provisions for inclusion in both possible future instruments through to 2022. The Experts’ Group note that uniform applicable law rules would help ensure the continuity of legal parentage across borders in the absence of a foreign judgment on legal parentage (i.e. where legal parentage is established by operation of law or following the acts of an individual/s). It will be interesting to see how this work develops and the extent to which it will ultimately be adopted internationally, particularly given the differing legal, social, cultural and religious attitudes and approaches to assisted reproduction and surrogacy around the world and the fact that not all jurisdictions produce judicial decisions following surrogacy.

Over recent years, attitudes to surrogacy have evolved internationally, with greater acceptance of surrogacy in some jurisdictions like the UK. At the same time, we have also witnessed the closure of some international surrogacy destinations due to mounting concerns about exploitation including: India, Thailand, Nepal and Cambodia.  More recently, the Covid-19 pandemic has generated concerns about the nature and scale of commercial surrogacy practices in the Ukraine and Russia. Sensitivities and concerns remain about the welfare of women and children, human trafficking, safeguarding measures and commercialisation that need to be considered and navigated carefully if effective legal instruments governing legal parentage following surrogacy are to be developed and introduced at an international level. Whilst international law reform to combat limping legal parentage of children is to be welcomed, it remains a challenging legal exercise that requires ongoing engagement and it will take time to address.

The importance of specialist legal advice in international surrogacy cases

In the meantime, the continued lack of international harmonisation of surrogacy law and policy creates a variety of complex legal and wider issues for intended parents, surrogates and surrogate born. This makes specialist legal advice important to proactively address a number of issues including:

  • Difficulties obtaining legal status or parentage orders in respect of a surrogate born child (to include a parental order, adoption or wardship).
  • Problems obtaining a passport or travel papers to return home with an overseas surrogate born child.
  • Issues and difficulties in obtaining, exercising or extinguishing parental responsibility for a surrogate born child (to include orders to acquire or restrict parental responsibility).
  • Problems and disputes associated with the care and upbringing of a surrogate born child.

At Louisa Ghevaert Associates we provide a range of specialist legal services to assist with the management of legal and wider issues arising from surrogacy. If you are considering, or are part way through, a surrogacy arrangement in the UK or internationally and you would like to discuss your situation or you require specialist fertility, surrogacy and family law advice and assistance please contact Louisa by email louisa@louisaghevaertassociates.co.uk  or by telephone +44 (0)20 7965 8399.

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