British Reproductive Law: Red Tape Means Prospective Parents Head to America, Yet Still Face Problems Bringing Home Baby8 May 2012 by Jennifer Lincoln
It is no mystery that professional women are inherently challenged in finding harmony between their career aspirations and family lives. It was not long after the Women’s Movement that the first fertility treatment centers became available, and infertility itself became a business. Infertility, once an unusual ailment which befell unfortunate women such as Sarah in the Bible’s Genesis, became almost indistinguishable from age, the result of a demanding career which left professional women in the office instead of the maternity ward. Now, however, infertility is hardly limited to the demands of professional women past nature’s ideal child-bearing age. Instead, gay couples, single men and women, and parents who may be challenged in reproducing with their own tissues or womb, for various reasons, fill the ranks of what can only be described as a medical service market.
Londoners are at the forefront of this market. Autumn 2011 saw London’s Fertility Show, welcoming dozens of private OBGYN clinics, surrogacy services, drug representatives, and lawyers specializing in reproductive and family law as its elite vendors. Innumerable hopefuls crowded the Olympia Exhibition Centre, seeking solutions to their parental dreams at this international baby bazaar. Notably, the services providers were almost entirely from abroad. Inherent in this fact is an astonishing international conflict of laws, in which public policy of artificial reproductive technology (ART) diverts British nationals to markets more permissive of the sought-after practices.
At first, the select European Union service providers at the venue may have seemed appealing to a London resident, due to their relative proximity to the United Kingdom. The shortcomings were quickly visible, however. While European Union clinics offered impressive IVF treatments, virtually no European Union vendors present offered the treatment with donor eggs. Not one European vendor offered surrogacy for imported embryos. And most forecast legal turbulence with relinquishing the host surrogate’s right to the child after the birth.
Along came the American services. In a true display of capitalism at its best, reproductive specialists from Las Vegas, Connecticut, Pennsylvania, and Florida delineated that virtually any adult could have a child, and they were there to help. If you were in the market for a newborn and had monetary – but no biological – resources, American reproductive services had all remedies currently technologically possible. IVF treatment was cutting-edge, and not bound by laws regulating the origin of the donor tissues. Surrogacy was also a large sell, as certain state courts are very aggressively protective over intended parents’ rights, and so there was no warranted legal fear of not having a surrogacy contract upheld. Clientele was also unlimited. Surrogates could carry embryos made from donor eggs and donor sperm for infertile couples, gay couples, single women, and single men. In short, American reproductive services offer “the works”.
These American vendors were in London for a very good reason. Actually, two. One is that Britain, and the EU in general, has long lines and red tape, if not outright iron bars, surrounding reproductive law. As a result, the rights of individuals to contract privately to have children in untraditional ways are limited.
This red tape affects numerable aspects of reproductive options. The most difficult option for prospective parents to successfully pursue is domestic adoption. The amount of children available domestically in Britain is miniscule, and the social service scrutiny which befalls prospective parents is almost prohibitively intense. International adoption is usually difficult from the home country end, in which gay, single, older, or medically less than fit parents are often not eligible to adopt. Problems likewise befall those in need of donor tissue. Britain does not permit compensation to egg donors. As a result, women seeking donor eggs usually wait 3-5 years for a donation. Those needing surrogacy present a further problem. The Human Fertilisation and Embryology Authority of the United Kingdom reports that in 2010, 45,264 women received IVF treatment domestically. Only 2.8% involved the use of donor eggs. In the United States, this rate is approximately 10%. Surrogacy contracts are prohibited in Britain by the Surrogacy Arrangements Act of 1985. Although they continue to exist, the contracts are not legally recognizable in Britain. Furthermore, the birthing mother is considered to have parental rights, and so anyone contracting with a surrogate runs significant risk of their child not being granted to them upon birth.
These shortcomings seem perplexing in view of the fact that IVF treatment was itself developed in Britain. Since this development, British laws have steeply curtailed development of infertility options, in light of growing demand for services. Which brings us to the second – and certainly most important -reason for the presence of any vendors in a market: the demand is enormous. London holds a “Fertility Show” for a reason. Innumerable British couples and singles, like most of the western world, are shopping for the biological means to become parents.
This demand is forceful enough to drive prospective parents to pay out of pocket for US services. In America, surrogacy is in the realm of state law, and so surrogacy flourishes in states like California, where the intended parents can establish their parental rights via surrogacy contracts. TJ Henderson, CEO of Surrogate Services International, a Philadelphia-based fertility recruiting and matching agency, explained the business British couples and singles wanting to be parents provide American surrogacy services. “So many fertility clinics in the US are making money off EU and UK citizens.” 60% of her clientele, she says, are from the European Union.
A pitfall still lies, however, on the home front. British laws clearly threaten parents’ ability to bring their American surrogate-born child into the country. Unlike their Californian counterparts, British intended parents must be granted a discretionary right to bring the child home at the British embassy. Thereafter, they must file for a court order for parentage upon return. As British law does not recognize commercial surrogacy, the child is considered not to be a British national, and so admission to the Kingdom is a process. It should be noted that while no court at home has separated such a child from his intended British parents, the mandatory jurisdiction of the High Court over any foreign surrogacy case involving commercial payment is a daunting prospect for prospective surrogate commissioners.
One representative from a Connecticut-based IVF clinic expressed her alarm at the legal procedures involved at the British end. “I was sitting there in shock”, she said, of hearing the difficultly of bringing US-born surrogate newborns to the UK. She suspected the prospective British mothers felt worse, however, commenting that she saw hopeful faces turn sullen while listening to full extent of legal red tape that binds and tangles infertile couples in the country. “It scared the bajesus out of them”.
Charlotte Danciu, also present at the event, is a Florida-based attorney specializing in international surrogacy arrangements. She explained how the surrogacy arrangements, while effective for British clients, essentially undercut British public policy law. “We still operate under the radar”, she admits, though purports this as a necessity, given that “the laws are so antiquated here”.
Danciu also shed light as to why American – rather than, for example, Indian – surrogate service vendors crowded the floor of the Olympia Exhibition Centre. Certainly, American surrogates are more expensive than those available in India. But Danciu argues this is for good reason. The American surrogate she describes is to-do, and presents an image which would make any prospective parent in need of a surrogate at ease with entrusting their embryos with these providers. “They are people who want to help. They are homemakers, writers, paralegals, and almost all are married.” As for Indian surrogacy, Danciu warns, “you get what you pay for”, describing women crowded in bunks with potentially inadequate sanitary and medical considerations. “Some babies born from these arrangements are turned over without a birth certificate”, she adds.
It is clearly outside British public policy intentions for the couples to be looking to undercut the law via foreign surrogacy arrangements, especially those involving considerable compensation for the surrogate and possible tissue donors. Nevertheless, the crowd speaks for itself. British and European Union nationals want fertility services, and their options are simply unsatisfactory on the domestic front. While pandering practices which are blatantly unlawful domestically may seem an affront to ethical marketing, fertility service providers defend their decision to cater to British and European Union clients. Danciu proudly affirms her professional mantra “everyone should be able to be parents.”
It is no mystery that professional women are inherently challenged in finding harmony between their career aspirations and family lives. It was not long after the Women’s Movement that the first fertility treatment centers became available, and infertility itself became a business. Infertility, once an unusual ailment which befell unfortunate women such as Sarah in the Bible’s Genesis, became almost indistinguishable from age, the result of a demanding career which left professional women in the office instead of the maternity ward. Now, however, infertility is hardly limited to the demands of professional women past nature’s ideal child-bearing age. Instead, gay couples, single men and women, and parents who may be challenged in reproducing with their own tissues or womb, for various reasons, fill the ranks of what can only be described as a medical service market.
Londoners are at the forefront of this market. Autumn 2011 saw London’s Fertility Show, welcoming dozens of private OBGYN clinics, surrogacy services, drug representatives, and lawyers specializing in reproductive and family law as its elite vendors. Innumerable hopefuls crowded the Olympia Exhibition Centre, seeking solutions to their parental dreams at this international baby bazaar. Notably, the services providers were almost entirely from abroad. Inherent in this fact is an astonishing international conflict of laws, in which public policy of artificial reproductive technology (ART) diverts British nationals to markets more permissive of the sought-after practices.
At first, the select European Union service providers at the venue may have seemed appealing to a London resident, due to their relative proximity to the United Kingdom. The shortcomings were quickly visible, however. While European Union clinics offered impressive IVF treatments, virtually no European Union vendors present offered the treatment with donor eggs. Not one European vendor offered surrogacy for imported embryos. And most forecast legal turbulence with relinquishing the host surrogate’s right to the child after the birth.
Along came the American services. In a true display of capitalism at its best, reproductive specialists from Las Vegas, Connecticut, Pennsylvania, and Florida delineated that virtually any adult could have a child, and they were there to help. If you were in the market for a newborn and had monetary – but no biological – resources, American reproductive services had all remedies currently technologically possible. IVF treatment was cutting-edge, and not bound by laws regulating the origin of the donor tissues. Surrogacy was also a large sell, as certain state courts are very aggressively protective over intended parents’ rights, and so there was no warranted legal fear of not having a surrogacy contract upheld. Clientele was also unlimited. Surrogates could carry embryos made from donor eggs and donor sperm for infertile couples, gay couples, single women, and single men. In short, American reproductive services offer “the works”.
These American vendors were in London for a very good reason. Actually, two. One is that Britain, and the EU in general, has long lines and red tape, if not outright iron bars, surrounding reproductive law. As a result, the rights of individuals to contract privately to have children in untraditional ways are limited.
This red tape affects numerable aspects of reproductive options. The most difficult option for prospective parents to successfully pursue is domestic adoption. The amount of children available domestically in Britain is miniscule, and the social service scrutiny which befalls prospective parents is almost prohibitively intense. International adoption is usually difficult from the home country end, in which gay, single, older, or medically less than fit parents are often not eligible to adopt. Problems likewise befall those in need of donor tissue. Britain does not permit compensation to egg donors. As a result, women seeking donor eggs usually wait 3-5 years for a donation. Those needing surrogacy present a further problem. The Human Fertilisation and Embryology Authority of the United Kingdom reports that in 2010, 45,264 women received IVF treatment domestically. Only 2.8% involved the use of donor eggs. In the United States, this rate is approximately 10%. Surrogacy contracts are prohibited in Britain by the Surrogacy Arrangements Act of 1985. Although they continue to exist, the contracts are not legally recognizable in Britain. Furthermore, the birthing mother is considered to have parental rights, and so anyone contracting with a surrogate runs significant risk of their child not being granted to them upon birth.
These shortcomings seem perplexing in view of the fact that IVF treatment was itself developed in Britain. Since this development, British laws have steeply curtailed development of infertility options, in light of growing demand for services. Which brings us to the second – and certainly most important -reason for the presence of any vendors in a market: the demand is enormous. London holds a “Fertility Show” for a reason. Innumerable British couples and singles, like most of the western world, are shopping for the biological means to become parents.
This demand is forceful enough to drive prospective parents to pay out of pocket for US services. In America, surrogacy is in the realm of state law, and so surrogacy flourishes in states like California, where the intended parents can establish their parental rights via surrogacy contracts. TJ Henderson, CEO of Surrogate Services International, a Philadelphia-based fertility recruiting and matching agency, explained the business British couples and singles wanting to be parents provide American surrogacy services. “So many fertility clinics in the US are making money off EU and UK citizens.” 60% of her clientele, she says, are from the European Union.
A pitfall still lies, however, on the home front. British laws clearly threaten parents’ ability to bring their American surrogate-born child into the country. Unlike their Californian counterparts, British intended parents must be granted a discretionary right to bring the child home at the British embassy. Thereafter, they must file for a court order for parentage upon return. As British law does not recognize commercial surrogacy, the child is considered not to be a British national, and so admission to the Kingdom is a process. It should be noted that while no court at home has separated such a child from his intended British parents, the mandatory jurisdiction of the High Court over any foreign surrogacy case involving commercial payment is a daunting prospect for prospective surrogate commissioners.
One representative from a Connecticut-based IVF clinic expressed her alarm at the legal procedures involved at the British end. “I was sitting there in shock”, she said, of hearing the difficultly of bringing US-born surrogate newborns to the UK. She suspected the prospective British mothers felt worse, however, commenting that she saw hopeful faces turn sullen while listening to full extent of legal red tape that binds and tangles infertile couples in the country. “It scared the bajesus out of them”.
Charlotte Danciu, also present at the event, is a Florida-based attorney specializing in international surrogacy arrangements. She explained how the surrogacy arrangements, while effective for British clients, essentially undercut British public policy law. “We still operate under the radar”, she admits, though purports this as a necessity, given that “the laws are so antiquated here”.
Danciu also shed light as to why American – rather than, for example, Indian – surrogate service vendors crowded the floor of the Olympia Exhibition Centre. Certainly, American surrogates are more expensive than those available in India. But Danciu argues this is for good reason. The American surrogate she describes is to-do, and presents an image which would make any prospective parent in need of a surrogate at ease with entrusting their embryos with these providers. “They are people who want to help. They are homemakers, writers, paralegals, and almost all are married.” As for Indian surrogacy, Danciu warns, “you get what you pay for”, describing women crowded in bunks with potentially inadequate sanitary and medical considerations. “Some babies born from these arrangements are turned over without a birth certificate”, she adds.
It is clearly outside British public policy intentions for the couples to be looking to undercut the law via foreign surrogacy arrangements, especially those involving considerable compensation for the surrogate and possible tissue donors. Nevertheless, the crowd speaks for itself. British and European Union nationals want fertility services, and their options are simply unsatisfactory on the domestic front. While pandering practices which are blatantly unlawful domestically may seem an affront to ethical marketing, fertility service providers defend their decision to cater to British and European Union clients. Danciu proudly affirms her professional mantra “everyone should be able to be parents.”