There are a great number of surrogacy agencies out there that do not sufficiently assist their clients in obtaining proper legal representation. They often recommend a one size fits all attorney from a State or Country that is irrelevant to the contract. I have recently been contacted by a Solicitor from Britain, Pamela Collis, who has expressed a great deal of concern because she is seeing British couples utilizing surrogacy in the United States without proper legal advice from Britain.
She has noted many British couples utilize a US surrogacy agency, have a child in the US and obtain a US court order that makes them the parents of the child pursuant to US laws. The orders declare the British couple as parents and terminate the interest of the surrogate mother and her spouse (if any).
The problem is that when the British couple return to Britain, the US order is invalid. Britain, under their legislation (the Human Embryology and Fertility Acts), treats the surrogate who delivered the child as the parent of the child and her husband (if any) as the father (unless he did not agree to the surrogacy arrangement).
According to Ms. Collis, the end result is that “the commissioning couple are not the parents under British Law and the child is not entitled to a British passport and any ‘indefinite leave to remain’ visa stamped into the child’s US passport has been unlawfully obtained.” This is creating a great deal of complex and difficult immigration problems and the the result is the “unwitting commission of criminal offenses” for Ms. Collis to have to fix on behalf of her clients. Clients assume the US order would be effective in the UK, which it is not. What complicates matters further is that the time limit to apply to the English court for a “parental order” to confer on them the state of “parents” is limited to only six (6) months from the child’s birth.
Ms. Collis has been dealing with cases in which the parents realized the problem well after six (6) months – far to long for her to assist them in obtaining a parental order. The only option Ms. Collis has for them may either be to conduct a full adoption of the children under the English system or “make do with another order under [their] Children Act which is not the same as being a legal parent.” Those are the actions needed merely to deal with parentage, without consideration of the considerable attorney’s fees yet to come to deal with the passport, immigration and criminal problems.
The solution! Every surrogacy arrangement must ensure that the contracts and legal arrangements are drafted or reviewed by an attorney licensed to practice in each and every jurisdiction where the agreement is likely to be interpreted to ensure compliance with that jurisdiction’s applicable laws. Do not take any shortcuts in this process or the outcome can be grave. The American Academy of Assisted Reproductive Technology Attorneys requires such action as an ethical requirement of each fellow. To learn more about the Academy or find a well trained advocate for Assisted Reproductive Technology visit www.aaarta.org.