British surrogacy ruling saves baby twins from Ukraine orphanage

December 12, 2008

British surrogacy ruling saves baby twins from Ukraine orphanage

Mark Henderson, Science Editor

A High Court judge called yesterday for a review of Britain’s surrogacy laws

after making a ruling that rescued baby twins from a legal limbo, which had

left them “marooned, stateless and parentless” in Ukraine.

The children faced being brought up in a state orphanage because conflicting

laws prevented their Ukrainian surrogate mother and the British couple who

paid her £23,000 from being recognised as their legal parents.

After making a parental order in favour of the couple, which gives the

children British citizenship, Mr Justice Hedley urged ministers to reexamine

surrogacy laws to prevent a repeat of the case, “a cautionary tale” for

anyone contemplating a foreign surrogacy arrangement.

While surrogacy is permitted in Britain, arrangements are legally

unenforceable and surrogate mothers cannot be paid more than their expenses.

That has led increasing numbers of childless couples to look abroad,

particularly to Ukraine, India and some US states, where they have stronger

rights and more surrogates are available because payment is allowed.

The legal problems arose because in Britain the legal parents are the

surrogate mother and her husband, but in Ukraine they are the commissioning

couple. The twins thus had no right to enter the UK, even though they were

conceived with the British man’s sperm. Their surrogate mother and her

husband had no obligations towards them under Ukrainian law.

The Home Office agreed to give the twins special discretionary clearance to

enter Britain, where their status could be decided by the High Court. Had it

not done so, they would have been moved to an orphanage.

The judge described the new parents, who cannot be identified, as “an

established and successful professional couple”. The case, he said, had

highlighted weaknesses in the current law, which the Government had said it

was willing to address during debate on the recent Human Fertilisation and

Embryology Act.

The court also authorised the payment made to the surrogate mother.

Natalie Gamble, of Lester Aldridge, the couple’s solicitor, said that many

of the problems could have been avoided if the British man had been regarded

as the twins’ father. “The case has also highlighted the absurdity of

British surrogacy law, in particular the fact that the biological father is

not recognised as the father if the surrogate mother is married,” she said.

“With more and more people going abroad for fertility treatment, these

issues desperately need to be addressed.”