As soon as I was aware of the Law Commission proposals for new surrogacy laws in the UK I have been concerned that the UK would become an international surrogacy destination. In Canada about 50% of surrogacy arrangements involve international Commissioning Parents (CPs). The UK would be a very attractive destination thanks to the NHS which would provide free maternity care for the surrogate mother.
There was evidence in the consultation that this is already happening:
Question 100 asked “We invite consultees to tell us of their experience of surrogacy arrangements in the UK involving foreign intended parents.”
Point 3.67 page 56 stated “one organisation asked intended parents to prove that they have the funds to meet the surrogate’s expenses. For foreign surrogacies they required funds to be placed in an escrow account.”
On page 391 I found this : “where foreign intended parents come to the UK for a surrogacy arrangement. The fact of such arrangements is apparent in case law.53 It has also been drawn to our attention by Northern Irish stakeholders whom we spoke to in the course of preparing this paper.”
For case law, see Re G (Surrogacy: Foreign Domicile) [2007] EWHC 2814 (Fam), [2008] 1 FLR 1047.
Clicky link (I hope): https://www.familylawweek.co.uk/site.aspx?i=ed9844_
So I had a look at this case and was shocked by the details.
“The terms of HFEA 1990, s 30(3)(b) make it plain that one or both of the commissioning couple must be domiciled in a part of the United Kingdom or in the Channel Islands or the Isle of Man. What renders the case of young M remarkable, and justifies this detailed judgment, is that Mr and Mrs G, the commissioning parents, are Turkish nationals who are domiciled in Turkey. As a result, it is not legally possible for them to achieve the status of M's parents by means of a parental order.
- The procedural history of this case, to which I am about to turn, is a cautionary tale which highlights the legal, emotional, and not least the financial consequences of surrogacy arrangements which are undertaken in this jurisdiction involving commissioning parents who are not domiciled in the UK. The law relating to the removal of children from the UK for adoption overseas is both complex and strict. This case has therefore involved some seven court hearings in the High Court in order to pick a way through the legal maze to achieve the most effective legal arrangement under which the commissioning parents can remove M to their home in Turkey in the hope of adopting her under Turkish law. The process has required, as a matter of law, a full social-work assessment by the relevant local authority and by a children's guardian appointed by CAFCASS. Expert legal opinion has been required as to the current state of Turkish law. I am advised that the total cost of the social work and legal input in unravelling the consequences of the arrangement that led to M's birth is just short of £35,000.00. That sum falls to be paid entirely by the British tax payer, the court being satisfied, in the circumstances of this case, that it would not be appropriate to seek to re-coup any of those costs from Mr and Mrs G, Mrs J or COTS, the surrogacy agency who assisted Mr and Mrs G in establishing the arrangement.”
The judge generously decided that the British tax payer should fund the £35,000 costs of the case.
The case was facilitated by COTS (Childlessness overcome through surrogacy). It became apparent that COTS had regularly been facilitating other international cases.
“The Role of COTS
17. It will be apparent from the exposition that I have given that the issue of Mr and Mrs G's Turkish domicile presented an insurmountable hurdle to their ability to achieve a parental order and that that fact would, or at least should, have been obvious before they embarked upon the surrogacy arrangement. The surrogacy arrangement was facilitated by COTS and it has therefore been necessary to understand more of the role of COTS and, in this regard, the court is grateful to the support worker from COTS who has attended court ('Mr Z'] and has provided an explanation of their activity in this case.
18. COTS is an organisation run on very limited resources by a group of volunteers. Their aim is to try to help childless couples to overcome childlessness through surrogacy. COTS sees itself as a supporting organisation, the role of which is to induct into its membership, on the one hand, women who wish to be surrogate mothers, and, on the other, couples who wish to have the benefit of a surrogacy arrangement. COTS arranges for a medical examination of the respective parties and undertakes a criminal records check. In the case of foreign nationals, COTS will ask the parties to cooperate in obtaining information from their country of origin. Once these various checks are completed, COTS passes the details of couples and surrogates on to a different agency, 'Triangle', which actually puts couples in touch with surrogate parents.
19. The COTS support worker, Mr Z, explained to the court that, prior to the present case, COTS had considered that parents in the position of Mr and Mrs G would qualify for a parental order and could simply take a baby born through surrogacy back to Turkey without any difficulty. He explained that it had happened, to his knowledge, in some twenty cases, involving different countries in the past. If this account is right, and I have no reason to doubt it, then it would seem that no court in a COTS case has previously been alerted, or has alerted itself, to the domicile requirements of s 30.“
There were plenty more such cases...
“22. Since concluding this case involving M and Mr and Mrs G, this court has become involved in hearing another international surrogacy case that was also facilitated by COTS. The correspondence in that case between COTS and the commissioning parents, who are Austrian nationals domiciled in Austria, provides more information as to the role of COTS, in particular:
i) The COTS membership form has specific rates for commissioning couples who are 'living abroad'.
ii) A COTS worker (who is a different person from the worker who assisted the court in M's case – 'Ms Y') wrote in November 2004 stating that COTS has 'helped many couples from Europe, and currently have couples from France, Greece, Norway, Belgium and Germany going through surrogacy'.”
The judge was concerned:
“25. Of more concern is the understanding that court now has as to the scale of COTS involvement in cases where the commissioning couple are domiciled overseas. It would seem that not infrequently COTS has been involved in facilitating a situation in which children are born in this country and then taken abroad for the purposes of adoption either under a Parental Order made on erroneous grounds or on the basis that the surrogate mother has given her written consent for the child to travel abroad.”
COTS had been facilitating BABY TRAFFICKING
“27. The traffic in young babies for adoption between one country and another is rightly now the subject of very strict control and is only authorised after proper and detailed scrutiny by the social services and other authorities. It is therefore a matter of significant concern that COTS has, albeit naively, been involved in the activities that I have described which are, and have long been, outside the law.”
The judge sent a copy of the judgement to the relevant government minister:
“a copy of this judgment is being sent to the Minister of State for Children, Young People and Families for her consideration.“
The judge concluded that in future the British taxpayer should be protected from the legal costs involved in international surrogacy cases:
“f) In the event that any agencies involved in facilitating or advising on surrogacy arrangements are approached by a couple who are not domiciled in the UK, or indeed any solicitor who may be approached by such a couple for legal advice, must advise that pursuant to rule 110 of The Family Procedure (Adoption) Rules 2005 the 'court may at any time make such orders as to costs as it thinks just'. Such orders for costs can be made against the commissioning non-domicile couple and can include payment of the legal costs of the proceedings, payment for the costs incurred by CAFCASS. Clearly, whether such costs should be paid will depend upon the circumstances of each case given that this court takes the view that the provision for surrogacy arrangements for non UK domicile couples are to be discouraged, it follows that the legal aspects to such arrangements should not become the financial responsibility of the British taxpayer. Any court faced with an application such as that which has been considered within this Judgment should give active consideration to the making of a costs order.”
All holding my own.
Seeing the details of this case I am left wondering about the extent of these types of cases since this one in 2007.
Aside of all my moral and ethical objections to surrogacy I also very strongly believe that the British taxpayer should not be funding what is, in effect baby trafficking, picking up the tab for the legal fees and the
NHS providing free maternity care.