By Anna Nelson @Anna_Nelson95

This blog examines the implications of the current COVID-19 pandemic, which has seen unprecedented restrictions placed upon citizens across the globe, for international surrogacy.  It concludes that while the pandemic does indeed pose some novel issues – such as the potential for babies born to surrogates who live abroad during this time period to be stranded with no legal parents or caregivers – in many ways the current situation simply serves to magnify the existing criticisms of and concerns about the UK’s regulation of surrogacy.

Why is Surrogacy a Major Concern?

Over the past few decades the number of people in the UK using surrogacy to start a family has increased considerably.   There are multiple factors which, together, can be seen to account for this.  First, there has been a significant shift in the make-up of society with the number of same sex families (for whom surrogacy may be opportunity to have genetically-related children) increasing dramatically.  Second, there is an increasing awareness of medical conditions which make it extremely challenging and/or dangerous for women to gestate.  This was illustrated in 2017 when Kim Kardashian revealed that she had accessed surrogacy for health reasons.  Celebrity openness about the use of surrogacy, whether for medical reasons or due to being in a same sex relationship (eg – Tom Daly) has contributed to the final factor at play; the increasing acceptance, awareness and normalisation of surrogacy as a legitimate reproductive option.

This explains the increased use of surrogacy, but why is international surrogacy being sought when domestic surrogacy is legal?  Firstly, demand for surrogacy significantly outstrips domestic ‘supply.’  Secondly, some families seek greater certainty of outcome and therefore travel to places like California where surrogacy contracts are enforceable, which is not the case in the UK.  Intended parents (IPs) may also opt for international surrogacy to prevent the surrogate from being a known entity in the resultant child’s life.  Together these issues ‘push’ many IPs into choosing to travel abroad to access surrogacy.  Though accurate statistics on those accessing surrogacy in this manner are hard to find due to the patchwork, poorly regulated system which exists at present, it is believed that up to 450 British couples/individuals per year are seeking surrogacy across borders – and that citizens of the are the most likely of any European nation to do so.

Legal Parenthood and Its Importance in a Pandemic

In the UK, the woman who gestates a baby is automatically the legal mother; this remains true for surrogacy.  In order for the IPs to gain parental rights, they must apply to the court to obtain a parental order (PO).  For this to be granted, a number of qualifying conditions must be met; these relate to a myriad of issues such as the domicile of the IPs, the place of residence of the baby, the amount of money which has been provided to the surrogate by the IPs and the time which has elapsed since the child was born.

Ensuring that those adults who will take on the role of parents obtain legal parenthood is always of vital importance as it provides parents with the right and ability to make key decisions about their child’s life.  Given that it is parental status which provides the right for parents to make decisions about their child’s medical treatment it is especially important in a time of pandemic when there is an increased likelihood that (major) healthcare decisions will have to be made.

International Surrogacy & COVID-19: The Potential Problems

1. Stranded Children

On a practical level international travel is currently very difficult, with many countries having closed their borders almost entirely.  Therefore, IPs may be physically unable to reach babies born to surrogates in this period. Cleary this will be a highly upsetting and anxiety-inducing situation, particularly given the lack of clarity about when restrictions will be lifted.

Legally, this might also cause significant problems.  In the UK, IPs cannot apply for a PO until the baby is at least six weeks old, meaning the gestational mother is the legal mother for at least this period.  However, there is no universal or internationally consistent regime for regulating surrogacy arrangements and the way legal parenthood is assigned within such arrangements.  Therefore, there is no guarantee that the laws on parental status in the surrogate’s country aligns with UK law.  Rather, they may recognise the IPs as the legal parents from birth, never assigning this status to the surrogate.  This can leave a child marooned ‘parentless’ (as seen in the famous Re X & Y case) with neither the surrogate nor the IPs being legally deemed to have parenthood.  During this pandemic in which the IPs may be physically unable to get to the baby to care the implications could be particularly grave.  Who will make key decisions for that child?  If the parents are legally unable to do so, will the decision makers choices align with those of the parents?

There may also be a concern that if the surrogate is unable or unwilling to care for the baby until parents can get to the country (particularly given the uncertainty about how long the current restrictions will last) the baby could potentially enter the care system in its ‘host’ country, and then may be incredibly difficult to extract.

Natalie Gamble Associates, a law firm which specialise in surrogacy, have published some guidance on this situation, and advise:
“putting in place emergency guardianship documents so someone appropriate can care for your child if you can’t get there.”

However, it seems likely that some of the IPs who travel abroad for surrogacy may not have anyone in the ‘host’ country who they could assign such a role to, as they may only know the surrogate and their contacts within the surrogacy agency.

2. Obtaining a Parental Order

IPs looking to obtain a PO also face potential problems as a result of COVID-19.   Two of the conditions for obtaining a PO are of particular relevance to this situation; the requirement that the child must reside with the IPs and the six-month time limit placed upon applications.  It is clear that in the present circumstances, IPs may have difficulty meeting either one or both of these requirements.

However, the reality is that once the child is born any decision made by the courts must place the best interests of that child as the paramount concerns.  This means that in practice judges regularly find ways around requirements which are not met and allow POs to be granted.  While this is one of the criticisms generally leveled at the current law (why have a law that is known to be unenforceable?) in this situation it will likely prove extremely useful.  There seems no reason why judges wouldn’t be willing to relax the conditions given the situation.

3. Delays in the Legal System

It has long been a criticism of the current surrogacy system that it is legally complex and tricky to navigate; indeed, this forms part of the impetus for the Law Commission’s ongoing review into reforming surrogacy law. Given both the heightened importance and complexity of obtaining POs at the current time, there may be a concern that disruption in the legal system could lead to delays.

However, infrastructure has been implemented to ensure the family courts can still run, with hearings being conducted remotely by video call. Further, those ‘essential to the running of the justice system’ have been identified by the government as ‘key workers’.  Though this is a somewhat ambiguous category, the Ministry of Justice has issued further guidance which indicates that lawyers working on ongoing surrogacy cases, or those new cases required in order to safeguard the welfare of a child, would be classified as key workers and therefore can continue to send their children to school if this is necessary in order to them continuing their work.  Therefore disruption to surrogacy hearings, either as a result of court delays or the unavailability of lawyers, is likely to be minimal; though depending on the spread of COVID-19 the number of delays could increase as lawyers and other key court officials contract the virus.

Conclusion

A number of potential issues which could be caused by COVID-19 in relation to international surrogacy have been identified here.  Though some are novel to this situation, others simply echo ongoing problems with the system.  The current situation has, in many ways, simply served to magnify the existing criticisms of and concerns about the UK’s regulation of surrogacy.  It has crystallised the potential complexities involved in international surrogacy, complexities which leave all parties vulnerable, and underscored the necessity to construct a surrogacy system which reduces the ‘push’ for people to access surrogacy internationally. Ironically however, one of the failings of the current system, the unenforceability of the parental order conditions, may serve to minimise the impact that has COVID-19 for IPs.

This post is part of an ongoing series on sexual and reproductive health and rights during the Covid-19 crisis. Read more here: COVID-19 and Abortion Care Update: Department of Health and Social Care “Error”