British surrogacy ruling saves baby twins from Ukraine orphanage

A British couple this week won custody over a pair of twins born to a
surrogate mother in the Ukraine. The twin babies were caught in a legal
loophole whereby the expectant British couple were unable to bring the twins
into the UK, as they were not recognised by English law as the parents.
Simultaneously, the Ukrainian biological mother no longer had any
responsible for, or even rights over, the children under Ukrainian law as
this (in contrast to UK legislation) gives binding effect to surrogacy
arrangements. Consequently, had the British couple failed to gain the
‘parental order’ for custody of the children, the twins would have been
returned to the Ukraine and placed in an orphanage.
The situation arose as a result of the couple being unable to find a
surrogate mother in the UK, where it is illegal to pay a woman more than her
expenses in a surrogacy arrangement, were advised to look abroad to a more
permissive jurisdiction, and subsequently employed the services of a
commercial surrogacy organisation in the Ukraine for a fee of around
£23,000. However, as the surrogate mother was married, the UK father, who
supplied the sperm, is not considered to be the father under UK law
(specifically s.28 of the Human Fertilisation and Embryology Act 1990) and
thus was unable to bring the children to the UK after birth. Though the Home
Office gave special leave for the children to enter the country pending the
High Court ruling, had the application for custody failed. The peculiar
legal effect of the disparity between the two legal systems is that the
children had, until the date of the court order, no legal parents and no
nationality.
The case highlights the ongoing problems surrounding the legal status of
surrogacy in the UK. Mr Justice Hedley, in his judgement on the case, stated
that ‘surrogacy remains an ethically controversial area’ and that
international surrogacy arrangements raise potentially difficult problems of
a kind not experienced with domestic agreements. However at present it is
impossible to enforce a surrogacy arrangement in the UK and the couple’s
solicitor, Natalie Gamble, stated that the UK surrogacy law requires urgent
updating to reflect the realities of modern fertility practices and that
currently it provides inadequate protection to vulnerable children. This
view was reflected in the court’s judgment, which noted the case
‘highlighted the wisdom’ of a review to surrogacy law (as proposed during
the debates on the Human Fertilisation and Embryology Act 2008, earlier this
year) and expressing a hope that the problems experienced by the couple ‘may
alert others to the difficulties inherent in this journey’.

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One response to “British surrogacy ruling saves baby twins from Ukraine orphanage

  1. The Convention on Protection of Human Rights and Dignity with Regard to Application of Biology and Medicine: the Convention on Human Rights and Biomedicine of April 4, 1997 provides for the following:

    The interests and well-being of an individual shall prevail over the exclusive interests of the whole society or science (article 2).

    Considering medical needs and available resources, the parties shall take appropriate action for the purpose of provision of equal access to the proper-quality medical assistance within the bounds of their jurisdiction (article 3).

    The provision regarding in vitro fertilization and transplantation of embryos, which was adopted at the 39th World Medical Assembly (WMA) (Madrid, Spain, October, 1987) says as follows:

    In vitro fertilization and embryo transplantation represent the medical method used in many parts of the world for sterility treatment purposes. This method can serve useful means both for separate patients and the whole society for treatment of infertility and, besides, can contribute to disappearance of genetic diseases and stimulation of fundamental research in the field of human reproduction and contraception.

    From the ethical and scientific viewpoints the medical assistance rendered in the sphere of human reproduction is justified in all cases of sterility, which is not subject to any classic drug or surgical therapy.

    In all such cases medical practitioners can take action only with the complete and well-informed consent of donors and recipients. First and foremost, the physicians must act in the interests of a child who will be born as a result of the above-mentioned procedure.

    With regard to the artificial impregnation procedure WMA welcomes and supports the method of in vitro fertilization. Further, the mention is made in the provision of potential ethical and legal conflicts concerned with the use of donor ovum, semen and embryos. However, basically, the use of donor matter in the process of in vitro fertilization is not prohibited and, instead, is supported by the provision. In this case, the necessity to observe the norms of the national law in the course of the procedure is taken into account.

    Besides, the provision does not deny the potential use of the so called substituted parenthood, according to which a woman agrees to be artificially impregnated for the purpose of conception of a child that would be subsequently adopted by a husband or his wife.

    WMA disapproves procedures connected with in vitro fertilization on the pay basis.

    Therefore, the relationship between customers and surrogate mothers are not basically disapproved by WMA. And if a customer bears expenses connected with the maintenance of a surrogate mother during the pregnancy period, thus providing the most favorable conditions for fetus development, any such interpretation of expenses conforms in full to the fundamental principles of the provision.

    ——————————————————————————–

    S.V. Yemelyanov Attorney at International Surrogate Motherhood Center.

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