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02 MAY 2011

International Surrogacy: Payments, Public Policy and Media Hype

Natalie Gamble and Louisa Ghevaert

Gamble and Ghevaert LLP

The international surrogacy case of Re L (Commercial Surrogacy) [2010] EWHC 3146 (Fam), [2011] 1 FLR (forthcoming) attracted front page national headlines in December 2010. It was heralded as a landmark judgment on surrogacy, fuelling debate about payments, public policy, welfare of children and family life. The facts of this case and the reasons why it hit the headlines are compelling, in what remains a complex and cutting-edge area of law and practice. Hedley J's reasons for publishing the Re L judgment were twofold. First, the Human Fertilisation and Embryology Act 2008 (‘the 2008 Act') had replaced the Human Fertilisation and Embryology Act 1990 (‘the 1990 Act') and this introduced policy changes in relation to international surrogacy applications; and secondly there were still practical issues that were causing difficulties which he felt merited wider publication.

The purpose of the judgment was therefore not to rehearse or examine the facts of the case in detail, but to tackle the intersection of public policy against commercial surrogacy in the UK and the welfare of surrogate born children following recent changes in surrogacy law. Media interest in the Re L judgment catapulted the issue of payments and the treatment of foreign surrogacy arrangements into the media spotlight and brought into focus the limitations of existing law and the motivations of those prepared to cross borders to set up surrogacy arrangements in ways that would not be lawful in the UK.

To read the rest of this article, see May [2011] Family Law journal.

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