The English Court has recently published a judgment which highlights various legal problems which UK based intended parents encountered following their US surrogacy arrangement. The case, Re W 2013, highlights concerns about illegality and legal irregularity in the context of an international parental order application and the implications of this from an English legal and public policy perspective.
By way of background, the intended parents worked with a US surrogacy agency in California, where commercial surrogacy is permitted, and they were matched with a married surrogate mother in the US state of Nevada. Their surrogate mother successfully conceived and triplets were born (two embryos were transferred and one subsequently split resulting in a triplet pregnancy). Prior to the birth, the intended parents were advised by their US attorney and agency in California to apply for a pre-birth order in Nevada to secure their legal status for the triplets. The intended parents therefore instructed a second US attorney in Nevada and obtained a pre-birth order in Nevada which conferred parental status upon them and extinguished the legal status of their surrogate parents for the triplets.
Upon their return to the UK, the intended parents applied to the English Court for parental orders for their children. During these legal proceedings, the English Court became concerned because the Nevada pre-birth order was granted on the basis the gestational surrogacy arrangement only reimbursed the surrogate mother’s living expenses, when in fact additional compensation was paid to the surrogate mother totalling $38,500 and was not disclosed to the Nevada Court.
The English Court, dissatisfied by the evidence it had been provided with, directed that the intended parents file further statements explaining how they were matched with their surrogate, how they came to complete the documentation in support of their pre-birth order (including details of any advice they received). In addition, the English Court directed that the intended parents file additional evidence about the law in the state of Nevada (in particular addressing the effect of the payments to their surrogate mother) and evidence from their US agency addressing the process of selecting/matching them with their surrogate and what advice, if any, their agency gave to them in relation to seeking a pre-birth order in Nevada. The English Court also appointed Cafcass Legal as advocate to the court to assist on issues relating to public policy and listed the case for a further court hearing.
The English Court ultimately granted parental orders to the intended parents, but it highlighted that at the time the surrogacy arrangement was entered into, the payment of compensation (as opposed to reasonable pregnancy related expenses) to a surrogate in Nevada was unlawful although it did not amount to a criminal offence. This reflected further expert US legal advice which stated that in the overall circumstances of the case, the Nevada Court would still likely have endorsed the pre-birth order. The judge also granted parental orders because she was satisfied that the intended parents had acted in good faith, they had no prior knowledge of the law in Nevada and had sought and relied on the legal advice they received in California and Nevada.
Although parental orders were granted to the intended parents, the case highlights the importance of carrying out thorough research and obtaining accurate expert advice throughout the process. The difficulties in this case resulted in the English Court requiring further evidence to be submitted, the appointment of an independent legal advocate to advise the court on the complex legal and public policy issues and three complex court hearings, the costs of which were borne by the intended parents.
If you would like more information about the legal issues associated with an international surrogacy arrangement contact me by email firstname.lastname@example.org or call +44 (0)207 222 1244.