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Mexico Bans International Commercial Surrogacy

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International Surrogacy

International commercial surrogacy once again hit the headlines in December 2015, as Mexico was the latest country to say that they were going to stop the ability for international intended parents (IPs) to have a child born through surrogacy within its borders. Mexico follows hot on the heels of India, Nepal and Thailand in a crackdown on IPs using their jurisdiction as a venue for commercial surrogacy.

Surrogacy Cost & Legal Standing

To understand why this has caused issues for IPs we have to understand the reasoning behind why these countries have cracked down. The first thing any person looking at commercial surrogacy thinks about is cost. Without a doubt, surrogacy is the most expensive route to alternative parenthood when compared to co-parenting and adoption, although sometimes IVF can actually end up costing more!

In my opinion, costs surrounding surrogacy are indirectly correlated to the legal protection that one is afforded in those countries. In life, when money is a problem, we all look to ways in which we can make things work on a budget. This can mean that we overlook certain aspects because we believe that everything will be all right in the end, however, when the law is involved on a national level I feel that we have to be very careful.

Not everyone is able to look at the United States and think, wow, let’s go ahead and do our surrogacy journey there. The US all in costs anywhere between $125,000 and $140,000 plus potential costs for the child / children when they’re born. But it offers the most legal protection for everyone within the process: surrogate, IPs, egg donor and unborn children! So when offered an option of $50,000 I can totally understand why IPs think of it as a viable option. However, we then need to take into account what that means legally.

In Mexico, it was well reported that only Tabasco State had favourable laws around surrogacy. This meant that on a National level when trying to get official documentation sorted there was sometimes an issue because Tabasco State was at odd with Mexico National laws. Some IPs that I know were lucky to be able to get through the process quickly, others were not so fortunate.

However, whenever IPs asked me about Mexico I would always say that the Governor of Tabasco State, Liliana Madrigal, had made multiple announcements that she wanted to ban international surrogacy and therefore IPs looking at Mexico needed to understand that the whole process could come to an abrupt end; which is what has happened. This was exactly what I said about Thailand as well as Nepal. All jurisdictions where the law was not fully formed, understood and in Statute.

Then on top of this one has to think about the legal protection of the people involved. Who is actually protected? This part has never really been clear to me! We went through our surrogacy journey in the United States and we knew from the start that everyone was legally protected: both our surrogate and our egg donor had lawyers (different from our own) that we paid for. We had documentation in place that protected the children whilst in-utero and we had a contract in place saying that our surrogate would abide by the court process affirming our parental rights.

The final aspect to think about with cost is the opportunity cost of having your child abroad. How long will it take for you to finalise all of the bureaucracy that needs to be done before you can fly home. In the US, any child born on US soil is automatically entitled to a US passport and as soon as you have this you can technically leave the country. In other countries this can take weeks if not months, which is a cost that needs to be added to the basic amount that you’ve been told the whole process will cost.

New Options
All of this leads me to remain steadfast in my assertion that the United States is the global benchmark for international surrogacy and that IPs looking at surrogacy should always do their due diligence on the US before looking elsewhere. BUT, I know that financially this just won’t happen for most so, what next? It seems that every time one surrogacy market closes, another seems to open up. When India closed to same-sex and single IPs, the Indian clinics opened up in Nepal (the cynic in me thinks they saw a cash business that was too valuable not to continue), now that Mexico has closed where next? It seems to be Canada.

I’m not a expertin Canadian law but as I’ve said before with regards Mexico, Thailand etc, IPs need to understand the law on a National level as well as on a local level. To date, there have been no court judgements against surrogacy contracts but as I’ve said before, this is an area of law where IPs need to understand the process from start to finish.

As a Commonwealth country, legally Canada is akin to the UK, where surrogates cannot be paid a commercial surrogacy fee and they can only receive expenses related to the pregnancy. In addition to this, surrogacy contracts are unenforceable and surrogacy agencies are run as consultancy firms. However, surrogacy is a booming business and it seems to be on the increase although the only Canadian province that does not allow surrogacy is Quebec.

Another area where Canada varies in comparison to the US is that it has socialised medicine (similar to the NHS in the UK). This means that children born through surrogacy (in theory) will not incur the massive hospital bills that can be run up in the US when a child has to be put into the Neonatal Intensive Care Unit (NICU) for whatever reason. BUT you have to do your own due diligence again as my understanding is that this actually depends upon where the child is born as certain Canadian provinces don’t adhere to this and IPs could end up with a hospital bill.

In the US, IPs need to go through strict blood tests before any embryo can be implanted into a surrogate (FDA rules) but in Canada this isn’t the case and I have spoken with one agency in Canada who said that they are receiving frozen embryos from all over the world to be implanted into surrogates. This obviously has to take place within a Canadian IVF clinic.

Which leads me on to Canadian Fertility Care. Canadian IVF centres are ok although apparently the bedside manner isn’t what it is in the US. The success rates are good when compared to the UK but not as good as the US. So once again it leads me to say that you should potentially look to the US for your IVF as well.

I know of at least one of the Canadian consultants that provides a package where the egg donor and surrogate travel to the US in order to take advantage of the better success rates. Then they fly back to Canada in order to go through their pregnancy and benefit from the cheaper health care. From the conversations that I have had between the different parties, I understand that the total cost for this is going to be between US$90-100,000.

So is Canadian surrogacy with US IVF the future of lower-cost surrogacy?? Watch this space.

Richard’s writing is his own and should not be taken as legal advice, it should be taken as observation. It is always important that you do your own research, due diligence and talking to the professionals involved and Richard cannot be held liable in any way.

You can find out more about Richard and his surrogacy journey on his website  www.guidetosurrogacy.com<

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Surrogacy

Families Through Surrogacy – The Ukraine Solution

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Families Through Surrogacy

As Families Through Surrogacy’s consumer-led seminar series returns to the UK in October, SAM EVERINGHAM catches up with Stacy Owen, one of a growing number of UK citizens engaging in Ukraine for surrogacy.

Stacy and her Morrocan-born husband Simo live in Sutton, Surrey. Stacy was 41 when she turned to surrogacy after enduring twelve years of infertility grief and loss. Simo, an electrical tester, was ten years younger. None of Stacy’s ten pregnancies had lasted more than nine weeks and her doctors could only say the problem was ‘immune issues’. Surrogacy was the only option left.

Stacy is frank about her needs. “I looked into the UK surrogacy process (but) I didn’t want to have to ….. form a relationship and take the risk (with British law) of not being able to have our baby(s) should the surrogate change her mind.  I wanted it to be a business transaction….. I didn’t want to be forced to be involved with the surrogate, although I remain in contact to this day.”

With US surrogacy being too pricey, Stacy discovered Ukraine – one of the few countries which provide for legal parentage for foreigners using surrogacy.  One clinic offered an all-inclusive package for €30,000 including IVF and birth costs, egg donor if required, medications, legals, surrogate expenses, compensation as well as their own food and accommodation. She Skyped with the clinic a few times and they signed up in April 2017.

Stacy stimulated for one cycle herself and found the hormonal effects a challenge. Their first transfer took but failed at six weeks. Their ‘package’ included an egg donor, who they had to choose online as a backup. The 21-year-old they chose produced enough eggs to create six high quality embryos.

Their clinic substituted a new surrogate. Six weeks post transfer Stacy’s email pinged with the first scan. An ultrasound had arrived clearly showing two healthy embryo sacs. “It was amazing to receive”, Stacy remembers. “We were so excited and over the moon that we had twins”.

Stacey & Owen

Nonetheless, Stacy only told her parents and one friend.  “I didn’t want all the questions and enquiries – the process was a very private one … we had too many past losses to feel comfortable before they were born”

Their clinic had a policy of not introducing intended parents to their surrogate until the end of the first trimester, given pregnancies can often fail prior. So Stacy and Simo had their first face to face contact with their surrogate via Skype at 16 weeks. Until this point letters were exchanged.

Stacy flew to Ukraine to meet her surrogate for the 26-week scan as well as other English couples.

“Legal stuff was the one thing we didn’t know about, we thought the clinic handled all of it’ Stacy confesses. She had assumed the exit process might take three weeks. When they discovered other UK couples have had to stay in Ukraine between 5 and 7 months post-birth, Stacy felt ill. “Oh my god, what have we done”.

But having built a career in educational governance, Stacy was used to project planning and paperwork. So by the time they travelled to Kiev at 37 weeks gestation she had almost two lever arch files in preparation for the application for British Passports and Parental Orders.

The Owens had purchased an economy surrogacy package which gave them a room in a shared villa outside Kiev. It was like a ‘Baby Club’ boarding house, Stacy recalls, full of expectant parents – Chinese, Romanian, Spanish, Belgian. There was no air-conditioning – it was sweltering.

“I cried for two days when I first arrived – it seemed in the middle of nowhere and the thought of living here alone when my husband left was daunting” Stacy admits. However, the experience and meeting parents from around the world was ‘a wonderful one’.

Against all odds, their twins were not premature and Ukraine hospitals do not induce. To their surprise, they had 16 days to kill until the birth at almost 40 weeks.
Their package meant delivery in a cheaper city four hours south of Kiev. They arrived by train. Again their clinic provided transport, interpreters an apartment as well as baby formula, baby clothes, nappies and money for food. When Aleah & Eli were born, strict hospital protocols meant they could visit for an hour daily until discharge on day seven.

Stacy was so organised that she met the UK’s arduous passport paperwork requirements on the first attempt. So ten weeks post birth this family of four was winging it back home to Surrey. The Owens had a family building story they would never forget.

Stacy is just one parent who will share her surrogacy advice amongst those who have engaged in the US, Canada, Ukraine or UK at FTS seminar series next month in Dublin (23 Oct), Edinburgh (25 Oct) and London (27 Oct). These will include advice and short talks from surrogates, surrogacy professionals and legal experts. Details at http://www.familiesthrusurrogacy.com/uk-ireland-oct-seminar-series/

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Surrogacy in the UK

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Surrogacy In The UK

With all the recent Newspaper headlines about celebrity couples using surrogacy as a way of creating or extending their families, it is perhaps unsurprising that the number of couples exploring surrogacy as an option in the UK is on the increase. However, it is important for those considering surrogacy to remember that many of these Newspaper headlines are in respect of couples and arrangements which take place abroad, and, as such, do not comply with the law in the UK. Couples should be very wary of using these celebrity couples as a template for their own surrogacy plans.

No matter what the genetic make-up of a child, UK law regards the woman who carries and gives birth to the child as the legal mother. If she is married at the time of insemination or implantation of an embryo, UK law regards her husband as the legal father – unless it can be shown that he did not consent to the procedure.

This is the case wherever the surrogacy arrangement takes place ie. even if the surrogate mother is a foreign national residing abroad and even if the surrogate mother’s own home country regards the commissioning couple as the parents and provides documentation to this effect.

UK law does provide a procedure by which the commissioning couple can then acquire full parental rights for the child born. This necessitates an application to the UK courts for a Parental Order. If made, the Parental Order extinguishes the parental rights of the surrogate (and her husband if necessary) and vests all legal parentage in the commissioning couple. The surrogate mother and the legal father must give full and free consent for the Parental Order to be made. Such consent cannot be given before the child is six weeks old and the application must be made to the Court before the child is six months old.

Surrogacy contracts in the UK are illegal and are unenforceable. Surrogacy arrangements, however, are legal provided strict criteria are complied with. These criteria are designed to protect the altruistic nature of surrogacy and prevent commercial surrogacy taking place in the UK. It is very easy to unwittingly fall foul of these criteria and find yourself in circumstances where there is then doubt as to whether the Court can make a Parental Order. This leaves the intended parents without legal parentage for their child and facing the prospect of alternative legal structures to protect their family eg. adoption – which was never intended for use by parents in these circumstances and thus brings with it complications and unintended consequences.

Parliament has recently acknowledged that the law relating to surrogacy needs to change in the UK. This has been prompted as a result of UK law having been found incompatible with EU law and to be discriminatory. It is envisaged within the next two years a Law Commission Report will make recommendations as to change which will bring surrogacy law up to date with social change, although there is still a strong sense that the altruistic nature of surrogacy should be retained as opposed to there being commercial contracts introduced. In this area of assisted reproduction, it is really important that intended parents take proper legal advice both before and after their child is born as in every case there is a legal process that must be complied with if legal parentage of the child is as intended.

Bio
Liz Bottrill is a Partner in the Family Law Team at Laytons Solicitors with over 25 years’ experience in the field. She has a particular interest and expertise in the law relating to children and fertility. www.laytons.com

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Surrogates – Extraordinary Generosity Provides Family to Hundreds

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Hannah Bailey

There have been huge changes in surrogacy availability in recent years. UK couples have in the past engaged in Thailand, India, Nepal and Cambodia. But these countries have now closed their doors to foreign surrogacy, pushing renewed interest in surrogacy in the UK.

Deanne Hart has a condition which meant she was born without a uterus. Nonetheless she has working ovaries allowing her to produce eggs. After four years with her partner they were keen to start a family and joined Surrogacy UK.. Ultimately a UK surrogate expressed interest and they spent three months getting to know each other and their respective families. Putting together an ‘agreement’ (surrogacy contracts are not legal in Britain) with their surrogate, they were lucky to achieve a positive result on the first attempt.

Surrogacy for Brits is also increasing in the US and Canada. The key is selecting reliable providers.

Hannah Bailey lives in the Bath district. She has MRKH, a condition which affects one in five thousand woman. It means she was born without a womb. Hannah was diagnosed aged 17, so had some time to plan her options. Hannah considered a number of options to have a family such as adoption, but decided upon surrogacy. She joined Surrogacy UK and meet a potential surrogate. Surrogacy UK enforces a three month getting-to-know-you period, which proved beneficial as the partnership was not right. Hannah admits she and her partner became impatient with the poor Surrogacy UK ratio of surrogates to intended parents at the time (although this has now been rectified).

They felt that for them, the US was unaffordable, so they looked at Ukraine. It was a country which has laws recognising foreigners as the legal parents via surrogacy. However their UK lawyer advised that obtaining UK citizenship for children born via Ukraine was going to require many months abroad and much red tape. Canada also allows foreigners to engage in surrogacy, but unlike Ukraine, awards Canadian citizenship. It meant Hannah could bring a newborn back to the UK on a Canadian passport within three weeks, then apply for UK documents once home.

Their UK lawyer introduced them to Canadian professionals and within three months they had met a network of Canadians ready to support them and matched with a surrogate. Soon they were shipping their precious embryos from the UK to Canada.

It was a relief Hannah recalls, that they never had to have a conversation with their surrogate about expenses and re-imbursements. Like in the US, a third party managed this for them. Their son Zachary was born in August 2017 and already their surrogate has offered to help with a ‘sibling journey’ if she is medically cleared to do so. Hannah is hoping they won’t have to find a new surrogate. Wait times have increased in Canada and all prospective parents are now advised that matching is so competitive, they need to record a ‘video biography’ to sell themselves to prospective surrogates.

Cathy HuntBack in the UK, lesbian mums are also more commonly offering their reproductive potential to both gay and heterosexual intended parents, often using their own eggs in what is known as traditional surrogacy. Tricia Hunt and her wife Cathy have four children of their own – two boys aged 13 & 6 (Trish carried) & twin girls aged 2 1/2 (Cathy carried) with the help of IVF and a sperm donor. In recent years though, Tricia has carried children for several other couples.

Tricia & Hannah are just two of some fifteen UK surrogates and parents who will share the ins and outs of local and cross-border surrogacy, at Families Through Surrogacy’s fifth annual UK consumer conference on Saturday 10 March, at 155 Bishopsgate, London.

Focused on the information needs of intended parents and surrogates, the events’ popularity lies in its honesty – putting parents and surrogates front and centre, sharing their real-life journeys.

This year’s conference has a focus on best practice in UK & US surrogacy, with leading professionals exploring the complexities of surrogacy arrangements and how best to lay the groundwork for successful journeys. Sessions will address some of the tough questions about trust, logistics, sourcing donors, matching with surrogates and legal parentage. New sessions will explore surrogate-intended parent relationships, outcomes for children, and how surrogacy is operating in Canada, Russia & Kenya. Tickets from £55 including lunch, morning & afternoon tea.

FTS-London-Conference-March-2018-design3 (1)

Go to http://www.familiesthrusurrogacy.com/uk2018/

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