Surrogacy remains an ethically controversial field and different societies take radically different approaches to it. In order to highlight possible conflict of law issues which might have unintended and unforeseen consequences for couples endeavouring surrogacy programs overseas, we would like to provide a brief summary on the case X&Y (Foreign Surrogacy) No: FD08P01466, High Court of Justice Family Division (London, UK) of 9 December 2008:
A couple from England has been for many years struggling with infertility and exploring different avenues to parenthood. Remarkable is that at all times they faithfully sought to comply with both the letter and spirit of the law. Finally they made a decision to undergo surrogacy program in Ukraine and entered into a legal surrogacy agreement with a married Ukrainian woman who had had her own children. The terms of their relationships were set out in the surrogacy agreement in details. Thereafter Ukrainian surrogate conceived in due course and gave birth to twins in Ukraine.
However, the couple was firstly unable to travel home with the babies since the laws in the United Kingdom and Ukraine in the issues of surrogacy are incompatible, and thus additional professional legal assistance might be required.
Whilst commercial surrogacy is unlawful in the UK, altruistic surrogacy agreements are legal but are not enforceable as such.
Section 27 of the Human Fertilisation and Embryology 1990 Act (the 1990 Act) provides that a woman, who is carrying or has carried a child as a result of an embryo transfer, or of sperm and eggs transfer, and no other woman, is to be treated as the mother of the child.
According to Section 28 of the 1990 Act the father of the child should be the other party to the woman’s marriage unless it is shown that he did not provide his consent to the embryo transfer, or the sperm and eggs transfer.
At the same time, Article 123 of the Family Code of Ukraine stipulates that if the embryo conceived by the spouses using Assisted Reproductive Technology is transferred into the body of another woman, the spouses shall be the parents of the child.
In effect, the children deemed to be stateless and parentless whilst the applicants could neither remain in the Ukraine, nor bring the children home. Finally, having satisfied the immigration authorities by DNA tests to prove that the British citizen is biological father of both children (which had to be processed in Ukraine, thus causing further delay), the children were given discretionary leave to enter “outside the rules” to afford the Intended Parents the opportunity to regularise their status under English law.
Overseas surrogacy agreements often merit transfer to a County Court of the UK and where there is a commercial element to the surrogacy, it will usually require careful consideration as to why it should not be transferred to the High Court. Certainly any case which involves a significant conflict of private international law should be transferred to the High Court.
On 5th November 2008 a Parental Order was granted by the High Court of Justice in London in favour of both applicants.
Although outcome of this case was happy in the end for all those involved, the couple experienced a lot of stress and anxiety, let alone expense of prolonged accommodation in Ukraine, obtaining of both Ukrainian and English legal advise, immigration negotiations etc. This case provides a reason for anyone who contemplates parenthood by entering into Ukrainian surrogacy agreement underlining necessity to obtain professional legal counselling with regard to all issues of the surrogacy program.