Legal regulation of ART treatment and surrogate motherhood – Surrogacy

Symposium Kiev 13 October 2016

Anne-Marie Hutchinson OBE, QC (Hon)Solicitor/Partner

Dawson Cornwell

Conception by artificial insemination; There must be a genetic link with at least one of the intended

parents The application is made by a couple (but they do not have to

be married and can be a same-sex couple) The application is made within six months (although this has

been extended in specific cases) The surrogate (and her spouse) must give their consent

(cannot be given until child is 6 weeks old) The child must have their home with the applicants at the

time of the order At least one of the applicants must be domiciled in the UK,

Channel Islands or Isle of Man “Commerciality test”

Criteria for parental order in the UK - s 54 HFEA 2008:

International Surrogacy raises a number of issues and conflicts of law. There is no ‘universal’ law

There is a huge disparity, even within Europe, as to the approach towards surrogacy

A Parental Recognition Order made in one state will not be automatically recognised in another state. There is no international mechanism for recognition and registration of parental orders.

Council Regulation (EC) No 2201/2003 excludes the establishment of parent-child relationships from its scope

The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children specifically excludes “the establishment or contesting of a parent-child relationship” – Article 4

Should there be a Hague Surrogacy Convention?

International problems

Significant diversity of national approaches Question of whether a state will apply its

own international private law rules (lex fori), or those states which may apply foreign law.

A child’s legal parentage is of international concern:◦ Identity; nationality; maintenance; inheritance;

immigration status. Risk of more legal lacuna opening, to the

detriment of the most vulnerable.

Is there a need for international regulation?

Disparity between states

Work of the Permanent Bureau of the Hague Conference in Private International Law◦ March 2011: Council◦ February 2016: Experts’ Group on

Parentage/Surrogacy Project

The focus of the discussion was on existing practice in different states. The next meeting will be in February 2017. The focus will be to consider how practice might me made more uniform through an instrument which might focus on recognition of orders between states.

A new questionnaire has been circulated: https://www.hcch.net/en/projects/legislative-projects/parentage-surrogacy

Represented countries: UK, USA, Russian Federation, PRC, Canada, Netherlands, New Zealand, Australia, Japan, Mexico, Israel, India, France, Germany, Italy, Spain, Philippines, Switzerland, Ukraine, South Africa. Experts who attended from the IAFL, International Social Services and the Council of Europe

US State Department

American Bar Association

AARTA: American Academy of Assisted Reproductive Technology Attorneys

Existing regional and international treaties and obligations

Wheels in motion?

Work to continue, “owing to the complexity of the subject and the diversity of approaches by States”

The majority of states do not have specific private international law rules, and mostly apply their general private international rules

Parentage tends to flow from birth registrations, voluntary acknowledgement, and/or legal proceedings.

Dialogue ongoing with regards to the recognition of foreign public documents

Headlines from the Hague Conference

Any Convention should focus on the conflict of laws, rather than any international regulation of surrogacy◦ “any international agreement

should allow for cross-border recognition of parentage judgments so that the parental relationship of all children will be certain”

Need to differentiate between adoption and surrogacy

American Bar Association’s Proposals Very open-ended:

• HCCH should encourage comity

Conflicting legal regimes for determining parentage is the source of a multitude of issues:◦ Stateless children: Re X & Y (Foreign Surrogacy)

[2008] EWHC 3030 (Fam) ◦ Risk of a ‘black market’?◦ Is complexity a bad thing?◦ Respecting the public policies of countries involved

ISAs bring issues with conflicting national laws to the fore, and regulation could lead to an exacerbation of the problems it seeks to solve.

American Bar Association’s Proposals

Not to use the “best interests” doctrine◦ Pre-birth determinations◦ Even more complex on an international basis◦ Interplay with other international treaties

Instead: doctrine of certainty and intent

Focus on intent-based surrogacy

No discretionary screening

Rights of expatriate intended parents

American Bar Association’s Proposals

◦ Step 1 - Pre-pregnancy; parties undergo counselling /medical screening. Independent counsel and translation would be needed. Accreditation would not be necessary.

◦ Step 2 - child's parentage is to be pre-determined by the Central Authority. This would be done by the surrogate's country of habitual residence, as defined in the treaty.

◦ Step 3 - donation◦ Step 4 - ART procedures commence.◦ Step 5 - Intended parents travel freely to surrogate's country◦ Step 6 - Child born◦ Step 7 - Final determination of parentage by Central Authority. Birth cert issued. Then,

'receiving' country's CA should allow a passport for the child; there should be a prohibition of exit visas, and recognition in the receiving country.

Seeks to provide security for parentage and citizenship, ensuring the integrity of the process.

American Academy of Assisted Reproductive Technology Attorneys

Surrogacy itself may not be the real issue. Rather, the uncertainty with these

arrangements is a symptom of a more general problem of irreconcilable family and

citizenship laws at the international level

On the horizon?

Anne-Marie Hutchinson OBE, QC (Hon)amh@dawsoncornwell.com

Dawson Cornwell, 15 Red Lion Square, London WC1R 4QT, UK

www.dawsoncornwell.com

Contact