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The Perils Of International Surrogacy: A Look At The UK

A great article on the risks of proceeding with a surrogacy arrangement in the UK:

The question of how to treat and regulate surrogacy arrangements raises many issues, and the UK has so far adopted a cautious middle ground approach allowing surrogacy on a restricted basis, banning commercially arranged surrogacy and making it a criminal offence for prospective surrogates or intended parents to advertise. Public policy in the UK also prevents the use of binding surrogacy contracts. Surrogacy arrangements are therefore based on trust and goodwill in the UK and the intended parents must apply to court for a parental order post birth in order to obtain full parental rights for the child. This can only be granted with the full consent of the surrogate mother and, if married, her husband. Other countries take a different approach, with many European countries banning surrogacy altogether, for example France and Italy. However, some US states, India and Ukraine permit surrogacy on a commercial basis where surrogacy contracts are legally enforceable and require the surrogate mother to hand over the baby to the intended parents at birth.

The media coverage of the case of TT (a minor) [1] and growing interest and globalisation of surrogacy brings new challenges for us all to grapple with. There is nothing new about surrogacy, but the increasing numbers of people seeking to create families through surrogacy in the UK and abroad, as well as the power of the internet and celebrity endorsement by the likes of Elton John and Nicole Kidman has inevitably captured public imagination and therefore puts an increasing strain on the current legal system. However, while it remains rare for surrogacy arrangements to end in dispute, there will continue to be occasions where the surrogate mother changes her mind and seeks to keep the baby, which will continue to bring into focus the inherent risks of a UK surrogacy process based on trust and goodwill that was designed over twenty years ago to cater for a small number of altruistic cases involving friends and family.

I would be remiss if I did not point out that the risks described by the authors of this article also exist outside of the UK. The United States, which is widely recognized as having some of the most progressive laws on surrogacy in the world, also presents risks to Intended Parents depending upon the state of residence of their Surrogate. Unlike most countries, the United States does not have any federal laws on surrogacy. Instead, each state has the ability to permit, prohibit and/or restrict surrogacy as they deem appropriate. States such as New York, Michigan and Arizona prohibit compensated surrogacy arrangements. Most states in the U.S. are silent on the enforceability of a surrogacy agreement and the entitlement of the Intended Parents to custody of their child. Consequently, it is imperative that anyone proceeding with a surrogacy arrangement, whether in the United States, the UK, India or anywhere else, be fully apprised of all applicable laws and risks so as to make a fully informed decision before committing to a process that has such significant ramifications.

You can read the entire article here.


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