International surrogacy parents speak to the World at One

Parents Michelle and Paul (names changed) spoke to BBC Radio 4’s World at One today about their experiences of international surrogacy, and the problems with surrogacy law in the UK. Their legal case (in which we represented them successfully) was reported anonymously by the High Court last December (as Re L (a minor) 2010) and received national press coverage at the time. Michelle and Paul took the brave decision today to speak about their personal experiences, in order to highlight the difficulties they have faced.

As Michelle and Paul explained, they entered into a surrogacy arrangement in Illinois after a very long and difficult journey of failed IVF and miscarriages.  They did so in accordance with the law in Illinois and underwent a thorough vetting process with a clear legal procedure designed to protect all involved.  Under Illinois law, they were treated as the legal parents of their child from the outset.

However, UK law treated their surrogate and her husband as the legal parents, despite the fact that neither had any biological connection with the child.  Michelle and Paul therefore needed an English High Court order to become Mum and Dad in the UK.

One of the key issues for the court here to consider was the mismatch between UK and Illinois law regarding the issue of payments  to their surrogate. In Illinois, payments for a surrogate’s inconvenience and discomfort can legitimately be made, although payments for a child are not allowed. In the UK, the law refers to ‘reasonable expenses’ (with no definition of what that means) but confusingly also gives the court a specific power to ‘authorise’ other payments. Ultimately in this case Mr Justice Hedley, noting that Michelle and Paul were the ‘most careful and conscientious of parents’, agreed to authorise the payments so that they could be approved as legal parents. However, he did not accept that the inconvenience payments to their surrogate were reasonable expenses.

It’s a story with a happy outcome, but one which shows that working out what is acceptable to pay for surrogacy at home and abroad is tricky.

In Illinois there is a clear legal framework in which payments are agreed and set out in writing at the outset (following counselling, psychological assessments and legal advice for all). If everything is done correctly at the outset, then the child is a part of the intended parents’ family throughout.

There is no such certainty under UK law. Every judge can interpret what is ‘reasonable’ differently, and the issue will only be considered after the birth of the child when the payments have been long since made, by which time there will always be tremendous pressure on the court to make an order protecting the child’s welfare.  As Michelle pointed out so poignantly, the value paid to the surrogate in this case was in fact no more than what has been accepted as being reasonable expenses for surrogacy in the UK, but it was not considered expenses in their case because the arrangement was an international one set up within a different legal framework.

We are left asking – where the values being paid for surrogacy are comparable, does it make any sense to treat them differently just because they are called compensation rather than expenses, and just because they are agreed in writing at the outset?  Would it not be better to have a more upfront system in the UK which resolves these issues at the start, rather than after the event?

You can hear the interview at http://www.bbc.co.uk/programmes/b006qptc