Call it the Wild Wild East.
An English couple made international news this week when a judge in Britain’s High Court granted them custody of twin girls born to a surrogate mother in Ukraine. For the couple, it was a tremendous sigh of relief after an awful stretch of legal and emotional chaos.
The couple had hired a surrogacy clinic in Kiev. Using the husband’s sperm and a surrogate’s eggs, they successfully returned to Britain with their two girls.
Success, that is, followed by confusion, concern and legal complications. The family returned home with their twins but without proper documentation to prove that the surrogate willingly participated in the gestation and birth. Naturally, the couple reached out to the surrogate, only to learn that she had disappeared, her whereabouts now completely unknown. The Ukrainian surrogacy clinic refused to assist, declining to provide additional information or legal documentation. Without the proper legal documents, or confirmation of the surrogate’s consent, or assistance from the Ukrainian clinic, the couple essentially became stranded — and faced the very real possibility that the British court would take their children.
This week Justice Lucy Theis deflated those fears, granting the couple full parental rights, while noting the lingering concern “as to whether the surrogate mother was a willing participant in this arrangement.” The case could easily have gone the other way. Britain’s Human Fertilisation and Embryology Act, passed in 2008, states that a couple working with a surrogate mother cannot become the legal parents of the surrogate’s children unless it is “clear” that the surrogate mother “genuinely decided” to relinquish custody of the babies.
Was this surrogate’s intention “clear”? Was her decision to relinquish her newborn daughters “genuine”?
London’s Daily Mail, which provided excellent coverage of this case, honed in on the couple’s age (they are in their 60s). But for those of us working in surrogacy law here in America, these other issues of clear intent and legal consent are far more important. For families who are lured east by Ukraine, Russia and India’s less expensive surrogacy arrangements, these are the risks: uncertain intent, murky consent, stunningly flawed legal contracts, and clinics and surrogates with a Houdini-like ability to disappear when their assistance is most urgently needed.