International surrogacy: Do you need legal advice?

Individuals and couples who are entering into international surrogacy arrangements commonly ask whether they need to seek legal advice. Our response is always yes – you need to seek legal advice in both the UK and the country where the arrangement will be taking place, and there are good reasons for this. Instructing a solicitor can help ensure all parties are clear on their legal rights, that the child can be safely brought back to their home in the UK and that the intended parents obtain a parental order, an essential element of securing their status as legal parents of the child.

The recent case of W, X v Y, Z [2022] EWFC 18 serves as a powerful reminder of the pitfalls of failing to obtain legal advice and the significant implications that this can have for the child and their family moving forwards.

W, X v Y, Z [2022] EWFC 18

In the case of W, X v Y, Z the intended parents entered into a surrogacy arrangement in Georgia and their child was born in 2017. During the course of subsequent public law proceedings in the court, it became apparent that the intended parents had neither received legal advice in the UK or overseas when entering the surrogacy arrangement. In particular, the intended parents were unaware of the requirement to obtain a parental order from the court upon returning to the UK until expert advice was given in November 2020.

In order to obtain a parental order in the UK courts there are a number of criteria set out in UK law, and in the case of W, X v Y, Z there were complications in demonstrating that these were satisfied. In particular:

• Consent of the surrogate. In accordance with UK law, the surrogate must consent to the parental order being granted and can only do so once the baby is six weeks old. In the case of W, X v Y, Z this consent was not obtained from the surrogate following the arrangement. By the time the matter came before the court, it was initially not possible to locate the surrogate mother and obtain her consent. Furthermore, the surrogacy agency in Georgia was also not forthcoming in providing this information, and so the assistance of the Embassy of Georgia in London was also sought. The surrogate mother was located in November 2021, but only following a further payment to an agent in Georgia termed as ‘administrative costs’. This was followed by an additional, and complex, process to obtain valid consent from the surrogate mother for the purposes of the parental order proceedings.
• Payments to the surrogate. In accordance with UK law surrogates may only be paid reasonable expenses for their participation in surrogacy arrangements, and the relevant sum is decided by the court on a case by case basis. In the case of W, X v Y, Z the evidence provided lacked clarity in respect of the sums paid to the agency in Georgia and to the surrogate mother, as the intended parents expressed difficulties in remembering the amounts they had paid and accurate records were not kept at the time. There was also not a contract in place with the agency in Georgia outlining the payment structure and sums involved.

The court also expressed wider concerns regarding the surrogacy arrangement, including that the original plan was to have two surrogate mothers pregnant at the same time and for the arrangement to take place across three different countries with embryo transfer taking place in Cyprus, the surrogate mother residing in Georgia for the duration of the pregnancy and the subsequent birth taking place in Istanbul.

In the end the court granted the parental order, recognising that making the order best supported the child’s lifelong welfare interests. Although the eventual outcome was positive, it came at a cost and the time and stress which could have been avoided if legal advice had been obtained.

Conclusion

The case of W, X v Y, Z provides a clear and convincing illustration of the importance of obtaining legal advice throughout an international surrogacy arrangement and the pitfalls that can arise from omitting to do so.

If you are considering entering into an international surrogacy arrangement and would like advice then please call us on 0800 422 0123 or contact us online.