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Surrogacy should not be equated to adoption: a headache for law and policy makers?

Surrogacy and adoption are different and they should not be treated the same in law and practice.  Surrogacy has its own unique identity and character and this brings challenges for law and policy makers who seek to regulate surrogacy at home and abroad and introduce an international legal framework for the recognition of legal parentage.

Growing numbers of people are embracing international surrogacy as a family building option. There is now an ever expanding global surrogacy sector, with Bulgaria the latest country around the world to legalize surrogacy.  However, despite the rapid expansion of surrogacy and particularly international surrogacy, there is no global regulation nor a minimum set of standards which should be followed.  The Hague Conference on Private International Law is therefore investigating ways of regulating surrogacy and the University of Aberdeen is currently looking at ways of developing an international surrogacy convention similar to the Hague Convention on Inter-Country Adoption.

A key problem that law and policy makers face is the varied approach to surrogacy around the world.  Some jurisdictions prohibit surrogacy entirely, others permit surrogacy on a restricted basis and others allow surrogacy on a commercial basis.  With such a wide spectrum, it is difficult to establish any common ground. Surrogacy also engenders a number of wider sensitivities that nations across the world continue to grapple with including right to family life, the intersection of altruism and commercialism and the reality that is now the global surrogacy market. There is much work to be done by nations around the world to make sense of these issues in this new era, particularly as the science behind assisted conception (including surrogacy) and the structure of modern families has changed dramatically compared with twenty years ago.

Whilst there is an international legal framework governing adoption, it is overly simplistic to liken surrogacy to adoption and try to shoehorn surrogacy into a similar framework.  Surrogacy represents the creation of a much wanted family by intended parents.  For English legal purposes, one or both intended parents are biologically connected to their child even if they are not recognized in law as their child’s legal parents initially (pending the grant of a parental order) due to complex and outdated laws in the UK. This biological connection is a fundamental distinction that separates surrogacy from adoption. Calls to vet intended parents’ suitability to create a child to whom they are biologically related through surrogacy raises difficult issues.

Adoption regulates the placement of a child (often in need) with a family.  Surrogacy has a very different character in that it involves the conception of a child using reproductive technology.  A surrogate born child is from the outset intended to be a member of the intended parents’ family, to be cared for and brought up by his/her intended parents. The grant of a parental order recognises this intent and triggers the issue of a British birth certificate naming the intended parents as the child’s parents as if they had been so since the birth, rather than issuing an adoption certificate making them adoptive parents from the date of grant of an adoption order.

Intended parents through surrogacy have often had a long and very difficult  journey to parenthood, often following failed assisted conception treatment, medical operations and investigations, a history of miscarriage and unexplained infertility.  Yet despite this, many intended parents continue to pursue their goal of creating a family and can offer their child a loving and supportive home and upbringing. Some intended parents turn to surrogacy rather than adoption precisely because they want to have their own biological child and because they are put off by the difficulties they perceive in navigating the adoption process.  Some intended parents also perceive that their difficult fertility journey, previous medical issues or age will count against them in an adoption application and ultimately prevent them from building their family through adoption.

The English court carefully assesses all applications by intended parents for a parental order and scrutinises intended parents’ circumstances, motivations and actions as part of this process as well as their ability to meet the surrogate born child’s needs and best interests. There are therefore a series of  checks that are already built into the parental order regime, which strike a careful middle ground approach balancing the best interests of the child against the public policy restriction against commercial surrogacy and the rights of individuals to have a family life.  The parental order regime does, however, currently take place post birth and the merit of introducing a pre-birth legal process in England and Wales to bring forward the legal process and vetting procedures  (like that adopted in California) is perhaps worthy of wider debate.

Any laws or international legal protocols which are introduced to try and regulate surrogacy or limit its practice and which make it harder to undertake surrogacy may cause problems in practice.  Given the widely different approaches to surrogacy across the globe, it is difficult to see how a global consensus will be reached and this could continue to drive intended parents to circumvent  legal frameworks that are introduced to regulate surrogacy and run the legal gauntlet notwithstanding the risks. There have already been a number of internationally publicised cases where intended parents have crossed borders to particiapte in surrogacy programmes in cirumstances where surrogacy is not permitted in their homeland (or is legally restricted) and which has resulted in palpable difficulties for them and their surrogate born baby.

The expanding global surrogacy sector, readily accessible information about foreign surrogacy destinations on the internet, celebrity endorsement of surrogacy and media coverage as well as ever improving success rates associated with fertility treatment can make surrogacy an appealing family building option, particularly if other fertility treatments have been unsuccessful. Surrogacy can bring immeasurable joy to people who’s lives have previously been blighted by the pain and heartache associated with infertility. Surrogacy can make people’s dreams of having a family come true, create new life and represent a truly life-changing gift.

Surrogacy is therefore far more than the placement of a child (often in need) with a family.  Surrogacy represents the conception of a much wanted child by intended parents who want to become parents and who are for English legal purposes biologically connected to their child. In practice, a surrogate born baby becomes part of the intended parents’ family at birth and is cared for by them from day one, unlike adoption. The special unique character and identity of surrogacy therefore needs greater understanding and recognition.  Surrogacy is different from adoption and it should not be treated the same in law or practice and this creates challenges for law and policy makers looking ahead.

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