Childless couples who acquire a baby using a surrogate mother abroad risk not being recognised as its parents in Britain if they flout British law by paying fees, fertility lawyers have warned.
Such payments, which can be as high as £30,000, could lead to those who have made them being refused permission by the high court to become the child's legal parents, specialist solicitors say.
The Human Fertilisation and Embryology Act 1990 allows couples entering into deals with a surrogate mother overseas to pay her only what is allowed here – "expenses reasonably incurred", such as compensation for time off work, medical bills and living expenses.
But lawyers handling such cases have told the Guardian a growing number of couples are embarking on international surrogacy in places such as India, the US and Ukraine, and that many of them are in effect flouting the law by paying whatever is needed to get a child. This could cause serious problems for them and the children as the high court may not grant a parental order.
"The risk couples face if they pay a disproportionate amount in expenses is that the high court may refuse to authorise those expenses. That could result in the parental order application failing and in turn they would have no status as parents under English law," said John Randle, a leading surrogacy lawyer.
More couples have sought legal advice about international surrogacy in the past two years, fertility lawyers say. Finding a surrogate in the UK is difficult, and many see surrogacy abroad as their last chance, said Miranda Baker, a lawyer in the field.
Lawyers predict that more people will pursue such deals after tomorrow, when the law changes to allow unmarried and same-sex couples to apply for parental orders.
Last November Mr Justice Hedley heard that a Mr and Mrs A had paid $23,000 (£15,000) to acquire twins from a surrogate mother in California. Mr A was the biological father. His sperm had been used to fertilise an egg from an anonymous donor and embryos were implanted into the surrogate. It was clear that "a significant element, although it is difficult to specify exactly what, of the $23,000 represents a payment contrary to the [law]", he said.
Among matters of public policy the case raised was that "the court should be astute not to be involved in anything that looks like the simple payment for [in effect] buying children". Despite that, Hedley granted Mr and Mrs A a parental order.
Hedley took the same view in 2008 in the case of X and Y – the first international surrogacy case the high court ruled on. A married couple whose repeated attempts to become parents had failed had twins known as X and Y using a Ukrainian surrogate. They also paid more than was "reasonable" to the woman, who used the money to put down a deposit on a flat, but obtained an order.
Sam King, a family law barrister specialising in assisted reproduction, warned couples having a baby through surrogacy abroad not to assume the high court would retrospectively endorse an arrangement that was "obviously commercial". "They are taking a chance [by paying large sums]. Not all judges may be as generous as Mr Justice Hedley has been so far. All you need is one family to be denied a parental order because too much money has been paid for the whole thing to be thrown into confusion."
Natalie Gamble, a lawyer who acted for the parents in both those cases, said: "If you don't get a parental order the English couple aren't seen as the child's legal parents and you are committing an offence if you are caring for a child that's not yours. You have to tell social services if you're doing that."
Randle had 21 inquiries in 2008 about surrogacy overseas, 30 in 2009 and has had five so far this year – 56 in all. Three clients are pursuing a surrogacy deal in America and two in India. Many couples Randle advises are married, London-based professionals in their 30s or 40s for whom surrogacy if their last hope of having a child. But a growing number are gay or unmarried. Two male civil partners in their late 30s expect twins from a surrogate in Texas in May, and two other gay men aged 30 and 34, who cohabit but are not civil partners, plan to use a surrogate in India.
"This is a growing phenomenon," said Randle. "As it becomes better known that this is a way of childless couples getting a child, and they learn how to overcome the legal complications in surrogacy abroad, I think the number of people who apply for parental orders will go up fairly dramatically over the next five years."
International surrogacy is hugely controversial. "It's unethical and exploitative because the trade is all one-way," said Breedagh Hughes, a Royal College of Midwives spokeswoman, on the ethics of childbirth. "It reduces babies to the level of commodities."
Jonathan, a 32-year-old nurse, tells how he and his civil partner, Colin, 33, a financier, spent $150,000 (£98,000) on surrogacy to become the parents of Harriet, who was born in California last year. They live in London.
"We began discussing having a child in 2006, when we were deciding to become civil partners. I was feeling broody, and had always wanted to have my own biological child. We opted to pursue surrogacy in California because we would get legal custody there of the child before it was born and the surrogate would have no legal relationship to the baby.
"My sperm was introduced to eggs left by an egg donor: they were fertilised in an IVF clinic in Los Angeles and two of the embryos were implanted into the surrogate. She simply carried the child for nine months.
An agency in LA found both the egg donor and the surrogate. We never met the egg donor or knew who she was, but knew her medical history, results of her genetic tests, what she looked like and so on. We did meet and get on well with the surrogate, who was called Jennifer. She had two daughters of her own and had been a surrogate once before. There was no coercion. We had a contract, and Jennifer specified things in that like that she wanted back massages and a big hotel room for her family to stay in when she was giving birth.
Agencies in California quote a price of $100,000 to $150,000 to do everything relating to a child. The whole process wasn't too difficult, and cost us about $150,000. We paid the embryologist $60,000, though that included the harvesting of the donor's eggs, the IVF and the transfer of the embryos into the surrogate. It was $40,000 for the surrogate and $10,000 for the egg donor, plus $10,000 to the agency, who supplied the donor and the surrogate. Then there was $10,000 for our lawyer, $5,000 for the medical and psychological screening and another $5,000 for medication for both the donor and the surrogate, to ensure they were in cycle at the same time.
"Bringing Harriet into the UK nine months later was incredibly difficult, though, and we engaged lawyers to help us. She had to come in as an immigrant on a US passport on a six-month tourist visa. When we later filled in a form to get her British citizenship, we put 'not known' in the section headed 'mother'. She now has dual nationality and is legally ours under Californian law. If we do apply, it could be an issue that we paid well over the 'reasonable expenses' limit – that is, we paid a fee. That's illegal in this country, but allowed under Californian law.
"We shouldn't have to seek a parental order. She was conceived and born in California as our child, and her birth certificate says who her parents are, so the courts here should respect Californian law.
Having to apply for a parental order, where there'd be an assessment of Harriet's welfare and Colin would have to prove that he's no danger to her, is an inequity. Anybody else can go out, get drunk, get pregnant, bring up a child appallingly and face no intervention or legal barriers.
I resent people saying that British couples who resort to surrogacy are buying babies abroad. We didn't buy Harriet: she's not picked off a shelf. She's not a 'designer baby'.
We had our own child and had a great team to help us. All we did was rent a woman to carry her. We paid for the services of an embryologist and an incubator who walks and makes good babies – but we didn't buy a baby. She's my daughter biologically, and she's our baby.
A lot of heterosexual couples in the UK spend a lot of money having many cycles of IVF at £5,000 a time – is that not buying a baby?"
Only first names have been given to protect the family's identity
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