Speaker James Lawford Davies

The conference discusses the legal issues associated with returning home after surrogacy abroad, highlighting identifying the key legal issues in international surrogacy and reviewing them as addressed by national and international courts. The discussion focused on possible solutions and improvements to avoid such problems.

The complex landscape of surrogacy involves intended parents, surrogates, donor gametes, clinics, agencies, companies, and legal entities—culminating in children born from these arrangements. In jurisdictions like the UK, the process operates smoothly within national boundaries. However, international surrogacy introduces legal complexities when intended parents from one country engage a surrogate from another, complicating matters across jurisdictions. These cross-border dynamics often lead to legal conflicts, reflecting varying national regulations and practices and posing significant challenges in navigating the legal framework of international surrogacy arrangements.

International surrogacy arrangements are invariably commercial. A fee is usually involved, unlike altruistic surrogacy, which is less common globally. Legal issues arise primarily from clashes between the laws of the intended parents' country and the country where the surrogate resides. These conflicts, known as conflicts of laws, also raise human rights issues and disputes between European jurisdictions and the European Court of Human Rights.

Different countries have widely varied approaches to surrogacy regulation, often rooted in public policy and ethical considerations. For example, Germany and Italy prohibit both commercial and altruistic surrogacy, with Italy even attempting to ban international surrogacy for its citizens. The UK permits non-commercial surrogacy and does not regulate international arrangements. In contrast, certain US states allow both commercial and altruistic surrogacy. Most countries lack specific regulations or legislation, leading to some developing poor reputations for offering questionable treatment practices. These varied legislative and policy approaches add complexity to international surrogacy compared to local arrangements. Key legal problems included travel restrictions and immigration issues, determining legal parenthood, and child protection concerns, exemplified by a difficult Italian case.

In addressing travel restrictions, the speaker shed light on the core issue that lies in whether intended parents who enter into a foreign surrogacy arrangement can return home with the child born from that arrangement. It has proven problematic due to differing legal approaches between the home country and the country where the surrogacy is arranged. 

In a notable case involving a UK couple, X and Y, who engaged in commercial surrogacy in Ukraine, they encountered legal complexities upon trying to bring home twins born to the surrogate. Despite reasonable payments, UK law initially recognized the birth mother as the legal parent, leaving the children stateless. After a DNA test confirmed paternity, the UK allowed the children to enter without passports, followed by a court process to secure parental rights. This case underscores the challenges of international surrogacy, contrasting UK and Ukrainian legal frameworks and emphasizing recent shifts in UK law toward safeguarding children's welfare in such arrangements.

Other international surrogacy cases also highlighted legal, parental, and ethical challenges. German parents faced passport denial for twins born via Indian surrogacy due to national law prohibiting surrogacy. Belgian parents, after Ukrainian surrogacy, were denied a passport for their child, alleging lack of genetic proof. They contested at the European Court of Human Rights, which upheld Belgian authorities' right to verify against child trafficking, despite claims of violating family life rights under Article 8. These cases illuminate the intricate legal landscapes and risks inherent in cross-border surrogacy, urging thorough comprehension and compliance with diverse jurisdictional regulations.

In a complex legal case, a French couple's surrogacy-born twins faced registration challenges upon returning from California. The European court upheld member states' authority to regulate surrogacy, denying the couple's parental rights despite residing with the children in France. The judgment prioritized the children's welfare, highlighting legal uncertainties affecting their rights, nationality, and inheritance. While acknowledging biological ties, the court underscored the children's vulnerability amidst conflicting legal frameworks, emphasizing the need for clarity in cross-border surrogacy cases.

Moving to child protection, the speaker discussed a complex and emotionally charged case known as the "Nation of Child Protection," the legal saga surrounding an Italian couple unveils profound ethical and legal dilemmas. Despite being recognized as parents in Russia, their attempt to bring genetically unrelated children back to Italy ignited a fierce legal battle. Italian authorities, disputing the children's status, accused the couple of deception. A court decision altered the children's identities, placing them in foster care and citing legal breaches. The European Court empathized with the parents but upheld state regulatory rights, balancing parental claims against societal norms. The ruling underscored the repercussions of flouting norms, highlighting the clash between personal and public interests.

European Society of Human Reproduction and Embryology, July 7-10, Amsterdam, The Netherlands