Blog originally published by American Society for Reproductive Medicine (ASRM)
The United Kingdom’s fertility regulator, the Human Fertilisation and Embryology Authority (HFEA), is updating its guidance on exporting eggs, sperm and embryos for surrogacy. It means that U.K. intended parents who wish to transport their gametes or embryos to clinics in the United States to conceive with a gestational carrier will now be able to arrange export much more straightforwardly.
Although export from the U.K. for the purposes of surrogacy has never been illegal, there are some complex regulatory rules which U.K. fertility clinics are obliged by law to follow which have in practice caused a block until now. To arrange export (without needing specific advance permission from the HFEA), U.K. fertility clinics must show the export falls within the rules of the HFEA General Direction on export. The General Direction creates a list of tick-boxes which, as well as confirming the safety and quality standards at the receiving clinic and patient consent, requires clinics to satisfy themselves that the treatment planned overseas would not be “unlawful” in the U.K.
This has long been a sticking point in surrogacy cases. U.K. law prohibits profit-making surrogacy agencies from operating in the U.K. and encourages the payment of no more than reasonable expenses to surrogates (although paying compensation is not illegal, and, in reality, the family court has the power to authorise surrogate compensation when awarding parentage and routinely does). As a result, many U.K. fertility clinics have been hesitant to export embryos or gametes overseas where “commercial” surrogacy is planned, fearing that this would breach the requirement in the General Direction about unlawfulness.
Previously, the HFEA guidance to U.K. fertility clinics added to the concern, since the HFEA advised that, before exporting gametes or embryos for surrogacy, U.K. clinics should ask patients whether the intention was to involve a commercial surrogacy agency or to compensate the surrogate. Although the HFEA was not clear about the implications of an affirmative answer, the fact that such questions were required was taken by most U.K. clinics as confirmation that export was not permitted where “commercial” surrogacy was planned.
In 2020, the pandemic threw a brighter spotlight on the problem, since intended parents who would have previously travelled to the U.S. (and elsewhere) for surrogacy, were suddenly not able to get there in person. More looked to U.K. fertility clinics to help them ship their sperm or embryos to the U.S. instead to enable them to conceive through gestational surrogacy. The confusion around the export rules, and the block this created in practice, suddenly became much more obvious and problematic.
This author’s fertility law firm, NGA Law, and U.K. surrogacy organisation, Brilliant Beginnings, therefore made a joint approach to the HFEA to challenge its legal interpretation and ask them to clarify that clinics could export under the General Direction even if “commercial” surrogacy abroad was planned. We set out our case that, although the law in the U.K. prohibits professionally arranged surrogacy in the U.K., the parameters of unlawfulness are narrow and only catch the activities of surrogacy agencies operating for profit in the U.K. The arguments made were that there is no unlawfulness around fertility clinics offering treatment, surrogacy agencies operating commercially outside the U.K., or intended parents/surrogates themselves making or receiving payments. Therefore, we argued that the General Direction requirement not to export for “treatment services” which would be unlawful in the U.K. was not breached if intended parents from the U.K. wanted to engage in commercial surrogacy overseas.
HFEA Chief Executive, Peter Thompson, responded in October 2020 that, having reflected, and taken legal advice, the HFEA agreed with our interpretation. It was not in fact unlawful for clinics to provide treatment services for surrogacy where there was a wider commercial element (even in the U.K.), and therefore U.K. clinics also could export gametes and embryos for surrogacy in compliance with the General Direction rules without needing to ask patients about whether any commercial elements were involved overseas.
The wider context here is that attitudes toward commercial surrogacy have evolved in the U.K. over the past 15 years. International surrogacy is now an established and accepted way of building a family for U.K. parents, and one routinely authorised by the family court. Around half the parentage orders made in the U.K. in surrogacy cases now involve children born overseas through “commercial” surrogacy – around 200 cases a year – and there are no cases where the court has refused to award parentage to U.K. parents who have used a professional agency or compensated a surrogate. International surrogacy was even recently endorsed by the U.K. Supreme Court which (in awarding damages for negligence to cover the cost of surrogacy in California) ruled explicitly that international commercial surrogacy was no longer contrary to U.K. public policy, provided that the country in question had a well-established system which properly safeguarded the interests of all involved. Although the update to the HFEA guidance is a clarification rather than a change of policy, it is in line with this wider trend.
Going forward, U.K. fertility clinics will now be able to export eggs, sperm or embryos for patients wishing to pursue surrogacy under the General Direction rules. They do not need advance permission from the HFEA and there is no need for them to ask whether their patients plan to involve a paid surrogacy agency or a compensated surrogate. They just need to liaise with the receiving clinic overseas to confirm they meet all the right quality standards and confirm that the patients consent to the export, something which should be straightforward in most cases involving U.S. fertility clinics.
Although it will take some time for the HFEA to review and update its formal published guidance on export, HFEA Chief Executive, Peter Thompson, has explicitly confirmed in his letter to NGA Law and Brilliant Beginnings that the change is of immediate effect. This is good news for patients wishing to export their eggs, sperm or embryos overseas for the purposes of international surrogacy, who can now be confident in their ability to do so in the midst of a pandemic even if they cannot travel themselves.
Guest Author, U.K. Solicitor, Natalie Gamble, is the principal of NGA Law, which represents and advocates for clients building families through ART and surrogacy, and a founder of Brilliant Beginnings, a non-profit surrogacy agency known for its policy and campaigning work and support of U.K. parents engaging in surrogacy in the U.K., U.S., and Canada. www.ngalaw.co.uk and www.brilliantbeginnings.co.uk