This is a significant development out of the United Kingdom. For the past 17 years, I have represented several hundred clients from the UK who have had to be extremely careful in proceeding with a compensated surrogate arrangement in the United States. Contracts had to be carefully drafted to ensure that any payments to the surrogate were limited to reimbursement of her anticipated expenses, lest they be denied the ability to proceed with a parentage action in the UK. This adversely impacted the number of women who would consider working with a UK couple as clients from other countries were not restricted by such compensation limitations. The willingness by Justice Hedley to consider compensation in excess of reimbursable expenses when ruling on parentage actions will have a profound impact on UK couples struggling with infertility who need an international surrogate.
A serving High Court judge has told the BBC that he is approving commercial surrogacy agreements made by British couples abroad. Laws in the UK are designed to try to prevent such arrangements, but Mr Justice Hedley said his paramount concern was the welfare of the child.
The most recent case the judge approved was last month, involving a baby born to a surrogate in the Ukraine. The judge said he was “extremely anxious” about the current situation.
In Britain, the judge said, the only payment allowed to a surrogate mother was one of “reasonable expenses”. However, he has agreed to give retrospective approval for commercial surrogacy on at least four occasions.
“The statute does give power to the High Court retrospectively to authorise these payments and the reason we do so is not because we want to encourage commercial surrogacy but because of the impossible position which the child born as a result of the arrangement finds themselves in when they’re back in this country,” he told BBC Radio 4’s The World at One.
Mr Justice Hedley, who specialises in family law, said it was important to highlight the issue because people were “getting into a mess unnecessarily”. Four weeks ago a judgement was handed down at the Royal Courts of Justice about a baby known only by the initials IJ. By the time the case gets to me, the best I can do is focus on the welfare of the child”.
A British couple went to the Ukraine and found a woman willing to become a surrogate mother. Under the law in the Ukraine the baby’s parents are the British couple. Under the law in Britain the Ukrainian woman and her husband are the parents.
Stuck between two conflicting legal systems, the baby, in effect, became stateless and parentless and there were major difficulties trying to get the baby through immigration into Britain. “I’ve done quite a lot of these commercial surrogacy cases and I’ve been extremely anxious at the difficulties people have got themselves into, usually through entering into them without beginning to appreciate the legal implications of doing so, and it just seemed important to say something about that,” he said.
He said if his judgements meant that the will of Parliament was being subverted, then it was a matter for politicians to address. “Commercial surrogacy is a highly controversial matter ethically and at the end of the day, by the time the case gets to me, the best I can do is focus on the welfare of the child,” he said. He warned anyone considering travelling abroad to enter into a surrogacy arrangement to prepare properly and to understand the legal implications.
“The most important thing is to ensure that you have really talked through the implications, preferably with people who have gone that way before you, but it is the immigration implications that are particularly important,” he said.