International Fertility Tourism: The Potential for Stateless Children in Cross-Border Commercial Surrogacy Arrangements

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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. …