For many LGBT couples, surrogacy allows for the prospect of having a child of one’s own. Unfortunately, in certain jurisdictions, the law has not progressed fast enough to keep up with the changing nature of families and the increasing reliance on surrogacy as a method of becoming a parent.
Two recent cases have highlighted the fact that this is an international problem and many governments need to re-examine their laws around surrogacy, particularly when it comes to immigration, to protect the best interests of the child involved.
Example One – Singapore
Singapore is a tremendous economic success story by any measure. Since gaining independence from Malaysia on 9th August 1965, it has turned itself into a highly developed, free market economy, which has been ranked the most open in the world, least corrupt and most pro-business.
But the island city is not ideal. Although clean and orderly, it has harsh judicial punishments such as caning, a tame press and illiberal social policies. Homosexual acts, for example, remain illegal. Protest demonstrations are rarely permitted. Capital punishment is legal. Surrogacy is not.
The BBC recently reported on a case involving an LGBT couple, James and Shawn (not their real names), who had paid $US200,000 to a surrogate in America. The child, called Noel in the report (again, not his real name), was conceived via an egg-donor and James’s sperm.
However, because James was not married to Noel’s mother, Noel was considered illegitimate under Singapore law. In addition, because his mother was not born in the country, the baby was not automatically granted Singaporean citizenship. When James and Shawn applied for citizenship for Noel they were declined.
Judge Shobha Nair, in her ruling, had insisted the decision was not based on the court's view of what "a family unit ought to be".
"This case has very little to do with the propriety and/or effectiveness of same-gender parenting," she said, “but was about the ethics of commercial surrogacy”.
That the couple paid S$200,000 for the child "reflects the very thing the Adoption Act seeks to prevent - the use of money to encourage the movement of life from one hand to another", she said.
The couple have appealed the decision and James is now instructing the best family solicitors to apply for adoption of his biological son on his behalf to dispense with Noel’s “illegitimate status”.
According to the BBC, when asked if they would consider migrating should the appeal fail, James said, "Singapore is our home. My partner and I are true-blue Singaporeans, born and bred here. We received our education here. We served in the Singapore Army.
"Our families and lives are rooted here in this country we love. We've never been made to feel different, or been discriminated against, except when dealing with the authorities.
"Having to leave...is not a decision we will make lightly."
Example Two – United Kingdom
In August 2017, Y and another v W and another  EWFC 60,  All ER (D) 148 (Aug) was decided in the family court. It was a highly complex case involving an international couple who entered into a surrogacy agreement.
The first applicant in the case was a national of country A and the second applicant was a national of country B. They worked in London and met in 2007, entered into a civil partnership in 2008 and purchased a property together—both subsequently acquired British Citizenship and passports.
The first applicant set up a business in the US and moved there in 2012 to work full time on the venture. The second applicant was made redundant from his London job and started spending more time with his family in country B. Around this time, they entered into a surrogacy arrangement with a US-based woman.
A pregnancy was confirmed in January 2014 with an egg fertilised with the first applicant’s gametes. The parties signed an agreement at that time that they would live in country B until the child was of school age, but the first applicant later said he did not wish to raise the child there.
The family moved between the US and the UK but separated in November 2015. Prior to this, in April 2015, the parties signed parental responsibility and step-parent parental responsibility agreements. These were registered separately by the second applicant in July 2015 and processed by the court in November 2017. They were initially relied upon by the second applicant in the proceedings to assert that he had parental responsibility for the child, but the first applicant challenged their validity as he himself had not had parental responsibility at the time of signing the step-parent form and so was unable to convey parental responsibility to the second applicant.
This case is multi-faceted; in June 2016 the child had been made the subject of an adoption order by a New York court in favour of the first applicant’s new partner. This case is ongoing. The issue before the UK courts was one of domicile and the fact neither applicants had parental responsibility for the child.
Under English law, the only recognised legal parent of the child was the surrogate mother. For a parental order to be granted in such a case, the criteria laid out under section 54 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008) must be met. Both applicants met all but two of the requirements. These were that at least one applicant was domiciled in the UK and the child’s home was with the applicants.
The second applicant argued the UK was his domicile of choice at the time of application and at the time of proceedings, and he put forward a flexible interpretation of ‘home’ under the HFEA 2008 to include a situation where a child was living in a different country and not having contact with an applicant, as had happened in this case.
The court stated it was for the person asserting domicile to prove it on the balance of probabilities. Justice Theis stated that the second applicant had not proven that he was domiciled in the UK at the time of the application for the Parental Order, therefore the application was refused on this ground. The judge was also critical of the applicants’ behaviour, stating they had “to a greater or lesser extent, sought to re-write the history to suit their own purposes”. For example, the second applicant had sought to emphasise his long-term plans and attachment to the UK; however, in related proceedings which occurred in Miami, he made the same claims about his settled residence and integration with the community.
Both these cases, from very different jurisdictions, illustrate how complex surrogacy matters can become, especially if the surrogate is based in another country and the birth of the child takes place there.
Anyone considering entering into a surrogacy agreement should seek the best advice from an experienced family and immigration solicitor to avoid any refusal of a Parental Order or British Citizenship for the child.
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Posted on: Thursday, 25 January, 2018