Louisa Ghevaert featured in magazine We Are Family: legal comment on surrogacy story
We Are Family magazine published the story of Georgios* and Alexander's* journey to parenthood through surrogacy in their Surrogacy Supplement which came out in March 2015.
Georgios and Alexander's story graphically highlights the legal risks and pitfalls that can arise with an international surrogacy arrangement.
Georgios was born in Greece, studied in Spain and worked in Russia and then Ukraine. Georgios was keen to start a family and contacted numerous Ukrainian fertility clinics to build a family through surrogacy. He told them he was single but not that he was gay. Most of the clinics he spoke to only treated couples, but one clinic said it would work with him. He agreed a fixed cost package with the clinic, who also helped him find a surrogate mother and an egg donor. Due to legal restrictions in Ukraine, he was further advised that he would need to find a woman to help him with the Ukrainian birth registration process.
Georgios then met his Ukrainian partner Alexander, who helped Georgios deal with his clinic. Alexander also introduced him to his friend Ira who was prepared to assist with the Ukrainian birth registration and be named as mother on the Ukrainian birth certificate.
After several failed treatment cycles, Georgios suggested the clinic change its approach and transfer three embryos to two surrogates simultaneously to increase the chances of a positive pregnancy result. However, the clinic transferred six embryos to each surrogate in a bid to secure a successful outcome. All 12 embryos developed and the clinic advised Georgios that embryo reduction was required and that selection would be done based on embryo viability. After embryo reduction, each surrogate continued to carry three embryos.
As the pregnancy progressed, the clinic advised foetal reduction to result in each surrogate carrying a singleton pregnancy. Georgios was asked whether he wanted to select the gender of his children, but ultimately asked the clinic to select the strongest foetus carried by each surrogate.
During the pregnancy Georgios got a job in the UK and Alexander was unable to leave the UK pending the processing of his visa. The babies were delivered early in Ukraine. Georgios and Ira presented to the clinic as the babies' parents and assumed care of them in Ukraine. Whilst it was possible to obtain Ukrainian passports for the babies, this did not enable them to travel to the UK as Ukraine is not part of the EU. The Immigration position became very fraught and delayed. The babies eventually managed to travel to Greece with Georgios and Ira (based on Georgios' Greek citizenship status). The babies subsequently obtained Greek passports which enabled them to travel to the UK where they were eventually able to start family life as a two-dad family unit.
Overall, Georgios and Alexander's journey to parenthood took over two years and it was a difficult, emotional and at times traumatic experience.
Legal comment by Louisa Ghevaert
Georgios and Alexander's legal nightmare graphically highlights the risks and pitfalls associated with international surrogacy. Although they are now the proud parents of twin girls, their family is left in an unresolved and vulnerable legal position.
Alexander has no legal parental status in respect of the twins in the UK or anywhere else in the world. The twins' Ukrainian birth certificates name Ira as their mother and this does not match the reality in practice of their two dad family unit. The twins are left with a confused legal identity and a lack of legal protection in the UK and overseas, made worse by the absence of international harmonisation of surrogacy law.
Although surrogacy is legal in the UK and both same-sex and heterosexual relationships are recognised under English law, Georgios and Alexander's legal position and family unit is still beset with legal difficulties. Alexander is not financially responsible for the twins under English law. The twins have no legal right of inheritance against Alexander's estate under English law as he is not their legal parent. Alexander does not hold parental responsibility for the twins and this means he lacks all the rights and responsibilities in law to secure their welfare, to include consent to medical treatment or immunisations or apply for a school place for English legal purposes. This creates all sorts of legal problems, particularly in the event of Alexander or Georgios' death or separation and leaves the twins in a vulnerable legal position.
Although Ira does not actively parent the twins in the UK and lives in the Ukraine, she is still seemingly regarded for Ukrainian legal purposes as their legal mother with legal responsibility for them. This creates complex legal parentage issues internationally due to evolving and conflicting surrogacy law and policy. This has already created very real legal and practical problems and delays for Georgios and Alexander in terms of their international mobility as a family, the twins' ability to travel and their legal status as a family. Given the multi-national character of their family and overseas work opportunities ahead, as well as the importance for Georgios and Alexander to obtain clearly defined legal parental autonomy for the twins, these issues require urgent legal management.
The twins' legal and family history is further unclear because their situation raises numerous wider complex issues associated with commercial surrogacy, the simultaneous use of two surrogates, their conception with donor eggs, multiple embryo transfer, selective reduction, sex-selection, the legal basis of their surrogacy arrangements in Ukraine and the lack of an international legal framework governing assisted reproduction and surrogacy.
Given the complexity of surrogacy law and the ensuing legal difficulties, palpably illustrated by Georgios and Alexander's situation, it therefore remains the consistent message of the Home Office and the English Family Court that all intended parents should obtain expert legal advice at the outset of their surrogacy journey to ensure they properly protect their much wanted family.