Tuesday, July 19, 2016

"Black market" surrogacy in England, and subsequent legal complications

Organizing markets without a strong legal framework can be tricky; here's a British surrogacy story from the law blog Above the Law: I Want To Put A Baby In You: Underground Surrogacy And The Burger King Baby

"Last month, an English court held that a surrogate to an “underground” arrangement could nevertheless keep custody of the baby she carried. This was despite the fact that the surrogate was not genetically related to the child. Instead, she was hired via a “secret” matching service and matched with a gay couple. They hoped to be parents through surrogacy for a second time.
The intended parents and surrogate met only once for 30 minutes. Unfortunately, the meeting was at a Burger King. And now, this poor child is forever linked to the fast-food franchise.
After the meeting, the surrogate was flown to Cyprus. (As I mentioned previously, Cyprus is a hot destination for surrogacy arrangements.) There, she underwent the transfer of two embryos to her uterus. The eggs were from a donor, and one was fertilized by one of the intended parents and the second egg was fertilized with sperm from the other intended parent. The transfer was successful, and the surrogate became pregnant with twins. But sadly, she later miscarried one of the babies.
Issues continued to mount. The intended parents missed payment deadlines. The surrogate learned that the couple’s first surrogate had a negative review of the intended parents. Ultimately, the surrogate decided to keep the remaining child. She lied, and told the intended parents that she had miscarried both babies. But she was caught when the intended parents saw her very pregnant toward the end of the pregnancy.
The intended parents brought legal action against the surrogate to try to obtain their child. But they also had unclean hands. They had offered to “pay” the surrogate 9,000 pounds in exchange for carrying the baby. While British law allows “reimbursement” of expenses to a compassionate surrogate, no “paying” of a surrogate is permitted. Additionally, the court held that the surrogate herself had a learning difficulty that made her consent to the agreement invalid.
Ultimately, the court awarded full custody to the surrogate—I hope that learning difficulty isn’t too severe—while the intended parents get very limited visitation rights:  one weekend every eight weeks.
While it sounds shocking to award a surrogate the parental rights over a child to which they have no genetic connection, this unfortunately happens throughout the world. Even in the United States. And “underground” surrogacy arrangements are not unusual.
"the Chinese Ministry of Heath all but outlawed surrogacy in 2001. So the estimated 10,000 surrogacy births in China a year are all via its underground surrogacy industry. And due to the illegality of the arrangement, intended parents in China can lack legitimate parental rights to their children born via surrogacy."
"It Happens To U.S. Too. Surrogates change their minds in the United States as well. In the Robinson case, a gay couple in New Jersey asked the sister of one of the men to carry their children for them. Like the China case, this one also involves twin girls. The children were not related to the sister, but the result of an anonymous egg donor and the sperm from the spouse of her brother. After the girls were born, the relationship between the surrogate and the intended parents deteriorated..."

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