The case of XX and Whittington Hospital NHS Trust has today commenced before the Supreme Court on the issue of whether the Court of Appeal was correct in law to direct Whittington Hospital NHS Trust to fund the cost of XX and her husband entering into a commercial surrogacy arrangement in California.
XX was diagnosed at 29 with cervical cancer which Whittington Hospital NHS Trust had failed to identify from her two prior smear tests. The resulting treatment and chemo-radiotherapy had a devastating impact on XX’s life and left her infertile. XX and her husband wanted to have four children but would only be able to do so via a surrogacy arrangement, either using XX’s frozen eggs or, if necessary, using donor eggs. Their venue of choice for the surrogacy arrangement is California as opposed to England.
So why choose California over England for surrogacy?
In California, commercial surrogacy arrangements are lawful, meaning that an individual or couple can pay a female to act as a surrogate for them. The arrangement is binding on the intended parents and the surrogate so there is certainty for all the parties. Furthermore, the intended parents can seek a pre-birth order from the court which would confirm their legal status as parents of the expected child.
This position is starkly different to England where commercial surrogacy arrangements are unlawful and therefore the surrogate cannot receive payment (except reasonable expenses) and any agreement reached is not binding on the parties meaning that the surrogate or the intended parents could, at any time, change their minds. For example, the surrogate could decide to keep the child and raise it as her own or the intended parents could decide that they no longer want the child.
Contrary to the position in California, you cannot obtain a pre-birth order (or equivalent) in England and therefore the surrogate is considered to be the child’s legal parent until the intended parents make a formal application to the court for, and are granted, a Parental Order.
In short, the benefit to entering a surrogacy arrangement in California is the certainty that it offers. No one can change their minds and from the date the child is born, the intended parents are the child’s legal parents and there need not be any ongoing involvement for the surrogate.
Is there a downside to surrogacy in California?
The answer is yes! As commercial surrogacy arrangements are unlawful in England, if XX and her husband did choose to enter into a surrogacy arrangement in California, regardless of the binding nature of the surrogacy arrangement, the existence of a pre-birth order granted by the Californian court and their being named as the child’s parents on its birth certificate, English Law would still apply. This means that the surrogate would be considered as the legal parent of the child and XX and potentially her husband would not have any legal rights or parental responsibility for the child until they applied to the English Court and were granted a Parental Order.
This could in turn impact on the family’s ability to travel to England with the child. If neither parent is recognised as the child’s parent, the Home Office could refuse to grant the child British Citizenship before the grant of a Parental Order by the English Courts. This would therefore leave the child unable to leave California in order to return home. The only solution would be for one parent to travel back to England in order to make an application to the Court for a Parental Order, whilst the child and other parent remained in California. This court process could take months to conclude and the situation is far from ideal.
This case highlights the complexity of surrogacy arrangements entered into both in England and internationally and it is always advisable to seek legal advice at the earliest opportunity when considering entering into a surrogacy arrangement.