Trust fund babies: the approach of the wealthy to modern family options
If you have watched the recent China Girl season of BBC series Top of the Lake, you might be forgiven for thinking that the international world of surrogacy arrangements is seedy and dangerous, rife with prostitute surrogates and parents so desperate for a biological link to their child that they suffer complete mental breakdowns.
It would be wrong to say that there are no dark corners where vulnerable and poor women are victims of corruption, but states around the world are taking significant steps to protect surrogate mothers from the risk of exploitation as a result of commercial surrogacy. Equally, it is important not to forget the happiness that surrogacy can bring for those otherwise unable to have children.
Some countries, such as the UK, have simply never permitted commercial surrogacy, and leave it to their justice systems to regulate those who facilitate these arrangements illegally. Altruistic surrogacy is usually permitted as it is far less likely to lead to exploitation given the fact that there is no money changing hands anyway. There are however many countries, such as France, Pakistan and Iceland, that have banned surrogacy (altruistic or commercial) altogether.
India was a country well known for its affordable and convenient commercial surrogacy arrangements for international intended parents. It was even referred to as 'the surrogacy hub' of the world and was estimated in 2013 to benefit from a $1bn industry. But after allegations of impoverished women being forced to become surrogates, the country began taking significant legislative steps to rein in the practice and now international commercial surrogacy in India has been completely banned.
As detailed in the 2015 Radiolab podcast Birthstory there was, for a time, a loophole where India would not permit surrogacy for gay couples, and Nepal would not permit Nepali women to be surrogates but had not completely outlawed surrogacy, and so Indian women would go to shelter houses in Kathmandu to be surrogates for international intended parents. The demand for affordable surrogacy arrangements is so great that people are prepared to make the most of any loophole. However, as eventually happened in Nepal, those loopholes are slowly slamming shut as countries choose to ban surrogacy altogether rather than undertake the costly exercise of active regulation of the industry.
That's not to say that all surrogates in countries with light regulation are being exploited; for many women in poverty, being a surrogate is a way to exercise their autonomy and independently earn far more money than they could otherwise dream of making so that they can provide a good future for their own children.
Commercial surrogacy without risk of exploitation has begun to appear to be similar to Fair Trade food; you have to go somewhere such as the US where the industry is well regulated (in certain states) and legally beneficial to intended parents (also in certain states), and that means paying a premium. It's started to look like the Whole Foods of the fertility world – reserved for the few who can afford the privilege.
Kim Kardashian, for example, has announced that she and Kanye will be having their third child by a surrogate mother, due to Kim's problems with placenta accreta in her first two pregnancies after which she was advised by her doctors not to conceive naturally again. The surrogate mother, who is reportedly now six months pregnant, lives in San Diego, California.
California is a "surrogacy friendly" state (the US can be split into surrogacy friendly states and otherwise) that allows commercial surrogacy. The courts usually enforce surrogacy agreements and allow the establishment of legal parental rights prior to the actual birth of the child which makes it a favourite state for intended parents. It is also one of the more expensive places to enter into a surrogacy arrangement. All of this isn't without its problems if the intended parents are from overseas, and couples need to be mindful of the legal hurdles that still need to be overcome within the UK.
The Kardashian-Wests can be relatively certain that the legal status of their new baby will be secure due to the protections the Californian courts are likely to offer, but they can also be secure in the knowledge that it is highly unlikely that their surrogate, whom they met through a reputable agency, is being exploited.
This will be even more of a comfort to them than it might be to an ordinary couple. For people in the public eye, the personal desire to have a child without putting a woman at risk is not the only consideration. For Kim Kardashian, her brand is her livelihood; lose the support of her followers and she loses everything. One exposé by a particularly determined journalist of poor conditions in the surrogate mother's home in, say, Vietnam would have been a significant knock to The Kardashian Empire and, when the Kardashians are involved, you can be sure that the journalists will be determined.
A related issue to consider is the enforceability of non-disclosure agreements in cases of media interest. When it comes to wealthy and/or famous intended parents, surrogate mothers could make a tidy little bonus on top of their surrogacy fees by selling their story to the highest bidder and a watertight non-disclosure agreement is the best way to avoid that. Sarah Jessica Parker and Matthew Broderick had their children with the help of a surrogate in 2009 and someone in her family spilled the beans, leading to headlines such as the Daily Mail's "Pictured: The tattooed, bisexual rocker who is pregnant with Sarah Jessica Parker's twins" which is unlikely to be the private pregnancy for which SJP would have been hoping.
The use of surrogates in the US is not unique to wealthy westerners. In the last few years the US has seen a trend of financially privileged Chinese couples travelling to the US to hire American women to be their surrogates, also hoping to benefit from a well regulated industry with preferential surrogacy laws allowing security over the substantial financial investment being made into their family.
While the laws in the "surrogacy friendly" US states often allow surrogacy agreements to be enforced and for intended parents to appear on the birth certificate or obtain legal parenthood relatively easily, one thing that must always be borne in mind when entering into international surrogacy arrangements, is the fact that there is no international convention on surrogacy or recognition between countries of the other's surrogacy laws.
In the UK, it matters not whether the intended parents are the legal parents of the child in the country of its birth. New parents of children born through surrogacy must always go through the process of applying for a parental order in the UK, regardless of where the child was born and its legal status in its place of birth.
This means that the parents must comply with UK surrogacy laws in order to obtain a parental order once they bring the child back here and this includes the ban on commercial surrogacy. This can create serious difficulties for the wealthy individuals who have gone to the US, for example, for the reasons explored above and entered into commercial arrangements which then require the retrospective blessing of the English court before a parental order can be made.
A nonsensical legal system it might be, but it is the one that we're stuck with until someone gives fertility lawyers the world over the reform and international cooperation we've been demanding for years. What it means is that it is extremely important for future families, who are usually about to invest significant sums into their surrogacy arrangements, to take proper legal advice before taking any major steps so as to avoid difficulties after the arrival of their bundle of joy.
If you would like more information on how the points raised could impact you, please contact Lois Langton.