Earlier this month the Human Embryology and Fertilisation Authority (HFEA) updated its guidance for those seeking fertility treatments in the UK during the latest national COVID-19 lockdown, writes Victoria Maxwell, a Solicitor in our Forming Families team who specialises in Surrogacy.
As the UK wide regulator of fertility clinics, the HFEA plays a crucial role for the thousands of people who need fertility treatment or surrogacy support to have children.
During the latest lockdown they say there may be local circumstances which mean that a clinic may have to suspend services for a period of time. Clinics are in any case in regular contact with patients who may be very concerned about this continuing situation and how it might affect their treatment.
Given the pressures on the NHS at this time, it is especially important that any treatment offered does not result in referrals to emergency care at local NHS Trusts wherever possible.
The HFEA’s informative website updated on 19 January lists some of the most frequently asked questions here. One of the challenges for those seeking to attend the birth of their surrogate child overseas is that since Boris Johnson imposed a lockdown on international travel it is not possible to leave the country.
That issue is not addressed in the latest FAQs.
The pandemic has thrown a spotlight on international surrogacy. The sudden restrictions in 2020 on international travel have prevented parents from getting to the births of their surrogate children, and stopped travel for the purposes of conception. In response, foreign governments have had to make exceptions to travel bans to allow expectant parents through surrogacy to reach their new-borns. The UK government has also created a new emergency UK passport application process to help British parents bring babies born through international surrogacy arrangements home.
The HFEA has updated its guide on exporting gametes and embryos – see the FAQs – so that fertility clinics can lawfully do so for the purposes of ‘commercial’ surrogacy under the existing General Direction rules. UK fertility clinics no longer need to ask whether intended parents plan to compensate their surrogate or to use a paid surrogacy agency. This is good news for intended parents wishing to send sperm or embryos overseas for surrogacy while they cannot travel themselves.
This issue was raised in November here, in the specialist journalist BioNews, “The need for such actions shows that international surrogacy is a reality which cannot be ignored. In England, the Family Court currently makes around 200 parental orders each year following international surrogacy arrangements (although this may only reflect a part of the true number of cases), a number which has grown significantly since the first international surrogacy case in 2008.
International surrogacy can therefore be seen largely as a response to the deficiencies of the UK framework, in which the law makes surrogacy agreements unenforceable, gives the surrogate legal motherhood at birth, and makes the process of finding a suitable surrogate uncertain and largely informal.”
As I have previously written, here, international surrogacy is often portrayed negatively, the implication being that UK surrogacy is preferable to international surrogacy. By way of example, the Law Commission’s provisional recommendations for surrogacy law reform, published in June 2019, stated: ‘We hope that one of the consequences of our reform of UK law will be to reduce the incidence of international surrogacy arrangements.’
From my experience one of the most common reasons many of my clients choose to enter into a surrogacy agreement abroad is due to the lack of surrogates available in the UK largely due to the fact commercial surrogacy in the UK is currently prohibited.
As the authors in BioNews observe: “To manage surrogacy better, we need to shift from categorising surrogacy as altruistic or commercial, domestic or international, and instead ask how to ensure it is ethical. This involves a number of key questions: Is there fully informed consent and a healthy balanced relationship between the intended parents, surrogate and any intermediaries involved? Is there a strong direct relationship between the intended parents and the surrogate, based on honesty and transparency? Are any professionals involved regulated and do they add valuable input in respect to safeguarding, screening and support? And most importantly, are the child’s rights and welfare put centre stage to ensure children are born with secure legal status, a positive and honest conception story and access to information about their birth story?”
Sadly, from my experience many international surrogacy arrangements do not provide positive answers to the key questions outlined above and often this is due to the lack of regulation and statutory framework in the country in which the agreement took place. This can cause unnecessary complications and delays for the intended parents when they return to the UK and apply for a parental order. If the factors outlined above are taken into consideration from the outset and evidenced properly to the court, any potential obstacles with the legal process here can be avoided. From my experience the questions outlined above are certainly factors the majority of judges and parental order reporters are taking into consideration each time. This highlights the need for intended parents to take advice as early as possible to avoid any unnecessary difficulties down the line.
The above is accurate as at 25 January 2021. The information above may be subject to change during these ever-changing times.
The content of this note should not be considered legal advice and each matter should be considered on a case by case basis.