International fertility tourism: the potential for stateless children in cross-border commercial surrogacy arrangements.

• Author: Kindregan, Charles P.
• Position: IV. Some International Examples of Illustrative Problems in Cross-Border Surrogacy D. Are These Children British? through VI. The Law in Nations That Promote International Surrogacy Arrangements A. India, p. 558-604

D. Are these Children British?

Commercial surrogacy is prohibited in the United Kingdom. (126) Because of this, a number of British citizens have gone to the United States, India, or the Ukraine where surrogacy clinics are allowed to legally operate.

In one case in the United Kingdom, the Court took judicial notice of the Ukrainian law that stated when a surrogate carrier releases the child to the intended parents she--and her husband if she is married--is released from all legal duties regarding the child and the child is not a citizen of the Ukraine. (127) However, the status of the child of surrogacy under British law was unclear, and this seemed to leave a child born to a surrogate in a foreign country such as the Ukraine for a British couple stateless. Ultimately, the U.K. Court is torn between two competing, and potentially irreconcilable, policies: those disfavoring commercial surrogacy contracts under statutory law, and those favoring an interpretation of law to achieve the best interests of a child. The authors believe that the British High Court of Justice did the right thing in accepting the legal parentage of the intended parents to live with their child in the United Kingdom; thus, potentially opening the door to a future application for citizenship in the United Kingdom. (128)

It was reported in 2012 that the number of British couples formally registering children born to foreign surrogates had tripled in five years, demonstrating that the practice of entering surrogacy arrangements abroad was increasing dramatically among British citizens. (129) However, British couples entering surrogacy arrangements in a foreign country were not immune to potential problems involving the nationality of their children.

The travails of a British couple illustrate these problems. In 2010, Mr. and Mrs. A. (130) entered into a surrogacy agreement with a clinic in India in hopes of successfully having a child of their own; both had children from previous marriages. (131) However, they only entered the agreement after exhausting possible alternatives and conducting thorough research on all of their options. Prior to 2010, the couple tried unsuccessfully for five years to have their own child. They tried various fertility treatments, including surgery, at a number of clinics in the United Kingdom. In 2009, they had six unsuccessful cycles of IVF in Barcelona, Spain, using donor eggs. It was then suggested that Mr. and Mrs. A should explore surrogacy in India as this appeared to be their only remaining option to have a child. (132) Mr. and Mrs. A initially researched two British surrogacy websites, (133) but both websites stated that they could not consider couples for the next three years because there was a shortage of surrogates in the United Kingdom. Discouraged, but still open to other surrogacy options, Mr. and Mrs. A researched surrogacy in the United States, Georgia, and the Ukraine, but ultimately chose to use a fertility clinic in India. (134) This is a somewhat typical example of the type of desperate intended parent(s) who seek surrogacy services outside their own country.

Mrs. A stated that they ultimately chose the Indian fertility clinic "for cost reasons and because they were assured by the Indian clinic that the surrogate mothers would have excellent ante-natal care." They also chose the specific fertility clinic because the clinic had a specialist, Dr. S, who had worked at reputable fertility clinics in the UK and was a member of the British Fertility Association. (135)

Mr. and Mrs. A's initial contact with Dr. S was in September of 2009. Dr. S's clinic was responsible for finding surrogate mothers who were women who had already given birth to a living child and who had been screened for a variety of conditions such as hepatitis and HIV. (136) The couple was advised to use two surrogate mothers to increase the chances of a successful birth. (137) It is unclear who advised Mr. and Mrs. A that using two surrogate mothers was the most practical decision, or if the couple was provided with any data or statistics from the clinic informing them that it was a regular practice to use two surrogates, or that the likelihood of a successful pregnancy using one surrogate was low. Given Dr. S's credentials, it was reasonable for the couple to believe that they were working with a reputable clinic and physician who had successfully worked with British parents and such a clinic would be prepared to help if any problems arose.

Three months after their initial contact with Dr. S, Mr. and Mrs. A travelled to India in January 2010 where they met both surrogate mothers and the married surrogate mother's husband. Mr. and Mrs. A did not contact United Kingdom solicitors regarding the implications of an international surrogacy agreement prior to their trip in January 2010, although they were aware of some of the legal difficulties they would encounter. (138) However, nothing in the record shows that the clinic or Dr. S advised Mr. and Mrs. A to seek independent legal advice. Suggesting that Mr. and Mrs. A seek independent legal counsel before entering a surrogacy arrangement should have been obvious to the clinic, given the likelihood that Dr. S knew about the fertility laws in the United Kingdom after working in fertility clinics in that country.

The first surrogate, hereafter referred to as E, was married and gave birth to two children, but her husband deserted her in 2000 and she had no contact with him since that date. E had waited seven years for his return and, due to the fact that the marriage had never been registered, E considered herself to be legally single as reflected in her affidavit. The second surrogate, hereafter referred to as C, was married to her husband D, and they had a son. (139)

While the British couple was in India, the lawyer for Dr. S's clinic drafted the contract for the surrogacy arrangement, which had two parts. The main surrogacy contract concerned the surrogacy arrangement and another document contained the details of the financial terms. (140) The main surrogacy contract contained five specific provisions. The provisions were as follows: (1) Mr. and Mrs. A were to have care of the children from birth onwards; (2) each surrogate mother would surrender any claim over the child born to her; (3) the surrogate mothers would keep the contents of the agreement secret; (4) the surrogates would submit themselves to the medical direction of the clinic; and (5) Mr. and Mrs. A were to meet all the medical costs associated with the surrogacy arrangements as advised by the clinic. (141) The main surrogacy contract was signed by Mr. and Mrs. A and E (surrogate mother) in January 2010. (142) In addition to the main surrogacy contract signed by Mr. and Mrs. A and E, E signed a declaration of intent promising to renounce custody and any parental rights over a surrogate child in favor of Mr. and Mrs. A. (143)

The main surrogacy contract was also signed by Mr. and Mrs. A and C (surrogate mother) and D (C's husband) in January 2010. Like the contract with E, Dr. S purportedly explained the implications of the agreement to all the parties. C also signed a declaration of intent in similar terms to the one signed by E. In addition to the contract involving C, D (C's husband) signed an affidavit confirming his agreement to the surrogacy arrangement, renouncing any legal rights in respect to a surrogate child and promising confidentiality. (144)

The financial agreement was the same for both surrogates and provided that Mr. and Mrs. A would provide compensation to the surrogate in installment payments. The first installment would be paid upon embryo transfer, the next installment would be paid on confirmation of pregnancy and for every month of pregnancy, and the balance handed over on birth and handing over the child. The monthly maintenance was said to cover all genuine expenses associated with the pregnancy and Mr. and Mrs. A were to pay all medical expenses and medication costs. Although Dr. S's company drew up the contracts, the document contained a statement that "the clinic was not a party to or responsible for the financial agreement between the surrogates and Mr. and Mrs. A." (145)

Both of the surrogate carriers (E and C) delivered children. One child (X) was a boy and the other (Y) was a girl. Both births were registered. (146) Surrogate mother E signed a declaration confirming the child's birth and relinquishing all legal rights in respect of her in favor of Mr. and Mrs. A. On the same day E also signed an affidavit explaining the status of her marriage (147) and that she considered herself to be legally single. (148) She also signed a document headed, "Consent Form/No Objection," which stated: that she delivered a child who had been handed over to Mr. and Mrs. A, that she had received the full financial consideration, consented to the child being removed from India, and had no complaints about the surrogacy process. Surrogate mother C also signed a "Consent Form/No Objection" in the same terms as had been signed by surrogate mother E. (149)

After consulting English specialist solicitors, Mr. and Mrs. A made citizenship applications for X and Y to the British High Commission in New Delhi, in accordance with guidance issued by the U.K. Border Agency. As part of the process of obtaining exit visas from India, the Indian authorities interviewed the couple, and the surrogate mothers and D (surrogate mother's husband). The Home Office issued certificates of registration as British citizens to X and Y and the children were issued British passports. The children then travelled to the United Kingdom with Mr. and Mrs. A and an application was made for a parental order. (150)

UK law requires parents who have a child through surrogacy to make an application to the family court, after the child's birth, for a parental order to give the applicants parental rights. In order for a court to grant a...