Cross-border and domestic surrogacy in the UK context: an exploration of practical and legal decision-making

Surrogacy: An important pathway to parenthood. A call for international standardization

This comprehensive review examines the multifaceted landscape of surrogacy, a revolutionary treatment for infertility. The study examines historical origins, shifting trends, medical considerations, psychological implications, legal complexities, international variations, and ethical dilemmas surrounding surrogacy. With the advent of assisted reproductive technology, gestational surrogacy allows intended parents a genetic connection to their child. Medical facets encompass indications for gestational surrogacy, drawing attention to maternal health risks and infertility factors. Evidence indicates that medical outcomes are comparable to conventional pregnancies, suggesting a viable reproductive solution for intended parents. Due to the complex nature of surrogacy psychological and emotional vulnerability is inevitable; yet studies underscore positive psychological well-being and satisfaction among gestational carriers (GCs), intended parents (IPs) and children. Surrogacy also has many religious dimensions, as each religion has its own perspective on the distinctive process of creating life and its outcomes, such as, the determination of the child's mother according to their beliefs. Legal considerations emerge as a fundamental aspect, with differing regulations globally. The review emphasizes the significance of comprehensive agreements to safeguard the rights and responsibilities of surrogates and IPs. The unique surrogacy laws in Israel serve as a noteworthy example, reflecting a progressive approach that provides a promising template to establish crucial international guidelines on surrogacy. The absence of international consensus necessitates attention from the global community to address key concerns, including the well-being of GCs, legal recognition for IPs, and the child's best interests, with the goal of establishing a universal standard of care in the field.

The future of surrogacy: a review of current global trends and national landscapes

The practice of surrogacy is frequently the subject of media, scientific, social, regulatory and policy attention. Although it is, for many, an accepted form of assisted reproduction for those who would otherwise not be able to have children, surrogacy often generates strong feeling, particularly where there is any possibility of exploitation. Therefore, there is disagreement about how it should be regulated. In some countries, surrogacy is prohibited in any form, although this does not stop people using it. In others, it is unregulated but still practised. In some nations it is regulated in either a 'commercial' or an 'altruistic' model. This review article considers the possible regulatory future of surrogacy, initially from a UK perspective considering a recent review of the legal framework in a country where surrogacy works well (although some cross borders to access it), and then through an assessment of global trends and other national perspectives. It concludes that the international regulation of surrogacy, although potentially desirable, is unlikely. This being the case, it would be preferable for individual nations to regulate surrogacy so it can be undertaken in ways that are safe, ethical and protective of the best interests of children, surrogates, intended parents and families.

International gestational surrogacy in the United States, 2014-2020

OBJECTIVE

To describe characteristics, trends, and outcomes of international gestational surrogacy cycles in the United States (US).

DESIGN

Retrospective cohort study.

SETTING

All assisted reproductive technology cycles in the US reported to the Society for Assisted Reproductive Technology Clinic Outcome Reporting Systems that included an embryo transfer to a gestational carrier from 2014 to 2020.

PATIENTS

International vs. US intended parents.

MAIN OUTCOME MEASURES

Cycle characteristics, geographic distributions, and obstetrical outcomes.

RESULTS

Of 40,177 embryo transfers to a gestational carrier from 2014 to 2020, 32% were for international intended parents. The number and percent of international intended parents' gestational carrier cycles increased each year from 2014 (n = 2758, 22.0%) to 2019 (n = 4905, 39.8%) with a decrease in 2020 (n = 4713, 31.8%). Compared with cycles for US intended parents, there was a larger decrease in gestational carrier cycles between 2019 and 2020 for international intended parents (3.9% vs. 32.2%). International intended parents were more likely to be male sex (41.3% vs. 19.6%), older than 42 years (33.9% vs. 26.2%) and identify as Asian race (65.6% vs. 16.5%). International intended parents were largely from China (41.7%), followed by France (9.2%) and Spain (8.5%). Gestational carriers for international intended parents were more commonly younger than 30 years (42.8% vs. 29.1%) and identified as Hispanic race (28.6% vs. 11.7%) compared with gestational carriers for US intended parents. Cycles with international intended parents were more likely to use donor eggs (67.1% vs. 43.5%), intracytoplasmic sperm injection (72.8% vs. 55.4%), and preimplantation genetic testing (79.0% vs. 55.8%). Cycles with international and US intended parents had similar obstetrical outcomes, including live birth (adjusted risk ratio 1.01, 95% confidence interval 1.00-1.03) and multiple pregnancy (adjusted risk ratio 1.00, 95% confidence interval 0.94-1.06) rates.

CONCLUSION

An increasing number of international intended parents are utilizing gestational surrogacy in the US and more frequently using cost-enhancing specialized treatment techniques. This increase is potentially because of restrictive international commercial surrogacy laws and the increased availability of reproductive medical expertise. Given this growing demographic, continued examination of the volume of cross-border reproductive treatment, as well as the legal and ethical considerations, is warranted.

INvestigational Study Into Transplantation of the Uterus (INSITU): a cross-sectional survey among women with uterine factor infertility in the UK assessing background, motivations and suitability

IMPORTANCE

The study summarises the selection prescreen criteria currently used in the UK for a uterus transplant and highlights the number of women who are suitable to proceed.

OBJECTIVES

To assess the demographics, motivations, reasons and suitability among women with absolute uterine factor infertility (AUFI) to undergo uterine transplantation (UTx).

DESIGN

A cross-sectional survey.

SETTING

An electronic questionnaire was sent via email to women with AUFI who had previously been referred to the UTx research team or approached the Womb Transplant UK Charity. The questions assessed suitability to undergo UTx based on demographic information, perceptions to adoption and surrogacy and reasons why UTx was preferable. Responses were assessed against the study selection criteria.

PARTICIPANTS

Women with AUFI.

RESULTS

210 women completed the questionnaire. The most common aetiology of AUFI in our cohort was Mayer-Rokitansky-Küster-Hauser (68%; n=143) whereas 29% (n=62) had previously undergone hysterectomy. 63% (n=132) of the cohort had previously considered adoption, 5% (n=11) had attempted it and 2 (1%) had successfully adopted. The most common reason cited to undergo UTx over adoption was to experience gestation (n=63; 53%), while 37% (n=44) wanted a biologically related child. 76% (n=160) of participants had previously considered surrogacy, 22 (10%) had attempted it and 2 (1%) had successfully become mothers using a surrogate. The most common reason to undergo UTx over surrogacy was to experience gestation (n=77; 54%). 15% (n=21) were concerned about the legal implications, 14% (n=20) identified the financial cost as a barrier and 8% (n=12) could not consider it due to religious reasons. On adhering to the selection criteria, 65 (31%) women were suitable to proceed with the trial.

CONCLUSION

The study demonstrates that implementing commonly used selection criteria for a UTx led to an attrition rate of more than two-thirds of women who requested to initially undergo the process. As more studies present outcomes following UTx, critical assessment of the selection criteria currently used is warranted to ensure potential recipients are not being unnecessarily excluded.

TRIAL REGISTRATION NUMBER

NCT02388802.

Australian intended parents' decision-making and characteristics and outcomes of surrogacy arrangements completed in Australia and overseas

Markets for international surrogacy often arise in jurisdictions with limited regulations regarding assisted reproductive technologies. In some countries, like Australia, regulated domestic surrogacy services are often sidestepped for international providers. This study describes how Australian intended parents decide where to pursue surrogacy and compares the characteristics and outcomes of arrangements completed within and outside of Australia. The findings show that, although intended parents preferred undergoing surrogacy in Australia, perceiving the process as too long and complicated was a common reason to pursue an international arrangement. Multiple embryo transfer, anonymous gamete donation, and a lack of counselling were common in international surrogacy arrangements. When compared to surrogacy arrangements completed in Australia, where single embryo transfer is mandatory for surrogacy cycles, the rates of multiple birth, preterm birth and neonatal intensive care in international surrogacy were higher. These findings raise concerns about the health and welfare of international surrogacy participants, particularly the surrogates and children. In lieu of any international instrument regulating surrogacy, improving access to surrogacy at a domestic level would reduce the number of people engaging with international arrangements and in turn, reduce the potential for harm.

Fertility preservation in patients with gynaecologic malignancy: Response to ovarian stimulation and long-term outcomes

OBJECTIVE

To the best of our knowledge, the available evidence on the effect and efficacy of controlled ovarian stimulation (COS) in this group of patients remains poorly reported. Concerns related to the impact of stimulation to cancer progression and recurrence, as well as the risk of disease dissemination during egg collection, might explain the aforementioned trend.

METHODS

Overall, our FP Service received 192 gynaecological referrals, between 2005 and 2021, regarding gynaecologic conditions mainly cancer related. A total of 68 (35.4%) patients underwent COS. These patients were diagnosed with the following gynaecologic pathologies: 33 cases (48,5%) of cervical cancer were noted (stage 1b1-2b), 25 ovarian pathology (36.7%), 9 cases (13.2%) of endometrial cancer, and a single case of vaginal cancer (1.5%).

RESULTS

The mean age of patients attending the fertility preservation service was 31.5 (std 5.8). The patients presenting to their initial appointment with a mean BMI 24.5 (IQR 6.9) and a median AFC of 12 (IQR 13). The mean duration of COS was 11 days (IQR 3), and the median dose of gonadotrophins was calculated at 300 IU (IQR 75 IU). In 95.4% of the cases, GnRH agonist was used as a trigger for final maturation. The median number of follicles measuring more than 14 mm at the time of trigger was 11 (IQR 8), whereas the median number of oocytes collected was 11 (IQR 9). The complication rate was reported at less than 2%. So far, one in four women of this FP group (17/68, 25% of the overall group) returned to our service to claim their cryopreserved eggs/embryos and successful livebirths were reported in 58.8% of this sample (10/17 cases). The mean time to return to use their oocytes/embryos was 36 months (min value 16 months - max value 85 months). There was no significant difference in mortality rate between patients who received FP vs those who did not (hazard ratio of mortality was estimated at 0.91 (p-value 0.88)).

CONCLUSION

Based on our findings, ovarian stimulation for patients presenting with gynaecologic malignancy is a safe and efficient method of fertility preservation. Undoubtedly, the sample size is limited, however our results are reassuring and highlight the efficacy of COS for the purpose of FP based on data coming from the largest Assisted Conception Unit of the South-East of the UK.

Single fathers' experiences of using egg donation and surrogacy to start a family

STUDY QUESTION

What are the experiences of single men using egg donation and surrogacy as a route to parenthood?

SUMMARY ANSWER

The fathers mainly had a positive relationship with the surrogate and simultaneously exercised agency, and experienced challenges, during the process of surrogacy.

WHAT IS KNOWN ALREADY

Little is known about single men's experiences of egg donation and surrogacy arrangements. Studies have focused on single men's decision-making processes about the use of surrogacy and family functioning once these families are formed. Questions remain about how fathers experience and navigate the process of surrogacy as a single man.

STUDY DESIGN, SIZE, DURATION

The study is an international, in-depth qualitative study of fathers who chose to begin a family and parent alone. Data were collected between 2018 and 2021 as part of a larger study of solo fathers with different routes to parenthood. The present study reports on 21 fathers who used surrogacy and egg donation to begin their family. The average age of the fathers was 44 years, the fathers had young children aged 6 years or younger, and lived in countries across Australia, Europe, and North America.

PARTICIPANTS/MATERIALS, SETTING, METHODS

Purposive sampling was used to recruit participants. In-depth semi-structured interviews were conducted. Interview topics included fathers' experiences of the process of using egg donation and surrogacy, and navigating the relationship with the surrogate. The audio-recorded interviews lasted around 2 hours and were subsequently transcribed verbatim.

MAIN RESULTS AND THE ROLE OF CHANCE

Data were analysed using reflexive thematic analysis and qualitative content analysis. Most of the fathers chose an identifiable egg donor. Regarding the relationship with the surrogate, many fathers had remained in contact with her, but to differing degrees, and they generally reported positive relationships. Thematic analysis led to the identification of three themes relating to the fathers' experiences of choosing surrogacy as a single man: the ability to make choices; challenges and constraints; and special relationship.

LIMITATIONS, REASONS FOR CAUTION

Due to the variation between different countries regarding laws on surrogacy, contextual factors may have impacted on the experiences of single fathers, and the sample size was small. However, the research provides new insights into an area with little academic literature.

WIDER IMPLICATIONS OF THE FINDINGS

Given the growing trend of single men having children through surrogacy, the findings suggest that this new path to parenthood can be both rewarding and challenging. Single men may benefit from tailored support and counselling to help them navigate the surrogacy journey.

STUDY FUNDING/COMPETING INTEREST(S)

This study was funded by the Wellcome Trust (grant number 208013/Z/17/Z). The authors have no conflicts of interest to declare.

TRIAL REGISTRATION NUMBER

n/a.

Impact of the war in Ukraine and the COVID-19 pandemic on transnational surrogacy - a qualitative study of Danish infertile couples' experiences of being in 'exile'

RESEARCH QUESTION

How did Danish permanently infertile couples experience surrogacy when going abroad and what impact did the war in Ukraine and the COVID-19 pandemic have on this?

DESIGN

A qualitative study was performed between May and September 2022. The in-depth semi-structured interviews were conducted with 14 permanently infertile couples across Denmark who were in different stages of using surrogacy. The interviews were transcribed and analysed using systematic text condensation.

RESULTS

All except one couple went abroad, mainly to Ukraine, to have an enforceable transparent contract, professionals to advise them and the possibility of using the eggs of the intended mother. They did not feel that this was a 'choice' but rather the only option they had to have the longed-for child. According to current Danish legislation, the intended mother could not obtain legal motherhood over the child, not even through stepchild adoption, and this increased the feeling of not being a 'worthy mother'. This study expanded on the term 'reproductive exile' by identifying four different forms of exile: the exiled Danish couple, the gestational carrier in exile, exile at home and, finally, the reproductive body in exile.

CONCLUSIONS

Understanding infertile couples' experiences when crossing borders is important for several reasons. It may, among others, assist politicians and authorities in developing a sound Danish legal policy on surrogacy to address the current issues of legal parenthood and avoid missing reproductive opportunities for permanently infertile couples.

Surrogates' and intended parents' experiences of surrogacy arrangements: a systematic review

This commentary situates the recently published systematic review of empirical studies of surrogates' and intended parents' experiences of surrogacy by Kneebone, Beilby and Hammarberg within the context of increased international interest in legislative and regulatory reforms to surrogacy. The commentary evaluates the strengths of this systematic review, before turning to a discussion of how jurisdictions could introduce reforms aiming to facilitate domestic surrogacy arrangements, focusing on the UK and the Law Commission's recent proposals.

Commercial Surrogacy: An Overview

OBJECTIVE

 Surrogacy is the process in which a woman carries and delivers a baby to other person or couple, known as intended parents. When carriers are paid for surrogacy, this is known as commercial surrogacy. The objective of the present work is to review the legal, ethical, social, and cultural aspects of commercial surrogacy, as well as the current panorama worldwide.

METHODS

 This is a review of the literature published in the 21st century on commercial surrogacy.

RESULTS

 A total of 248 articles were included as the core of the present review. The demand for surrogate treatments by women without uterus or with important uterine disorders, single men and same-sex male couples is constantly increasing worldwide. This reproductive treatment has important ethical dilemmas. In addition, legislation defers widely worldwide and is in constant change. Therefore, patients look more and more for treatments abroad, which can lead to important legal problems between countries with different laws. Commercial surrogacy is practiced in several countries, in most of which there is no specific legislation. Some countries have taken restrictive measures against this technique because of reports of exploitation of carriers.

CONCLUSION

 Commercial surrogacy is a common practice, despite important ethical and legal dilemmas. As a consequence of diverse national legislations, patients frequently resort to international commercial surrogacy programs. As of today, there is no standard international legal context, and this practice remains largely unregulated.

Ongoing Commercialization of Gestational Surrogacy due to Globalization of the Reproductive Market before and after the Pandemic

Surrogacy tourism in Asian countries has surged in recent decades due to affordable prices and favourable regulations. Although it has recently been banned in many countries, it is still carried out illegally across borders. With demand for surrogacy in developed countries increasing and economically vulnerable Asian women lured by lucrative compensation, there are efforts by guest countries to ease the strict surrogacy regulations in host countries. Despite a shift toward “altruistic surrogacy”, commercial surrogacy persists. Recent research carried out by international organizations that seek to establish a legal relationship between the commissioning parents and children in cross-border surrogacy arrangements, under the guise of the “best interests of the child,” appears to promote a resurgence of overseas commercial surrogacy rather than restrict it. Further commercialization of surrogacy should be prevented by carefully investigating the reality of the surrogacy process.

First clinical report of 179 surrogacy cases in the UK: implications for policy and practice

RESEARCH QUESTION

What implications for policy and practice can be derived from outcomes and trends observed across 8 years of a surrogacy programme in two UK-regulated IVF centres (London, Cardiff)?

DESIGN

Retrospective cohort study analysing surrogacy treatments undertaken between 2014 and September 2021.

RESULTS

Surrogacy continues to rise in popularity in the UK despite the inability of those supporting safe and professional practice to advertise to recruit surrogates. In two IVF centres regulated by the Human Fertilisation and Embryology Authority (HFEA), both the number of surrogacy treatments and the proportion of those undertaken on behalf of same-sex male intended parents increased year on year in the period studied. From a cohort of 108 surrogates, 71 babies were born to 61 surrogates (with five pregnancies ongoing) by February 2022. No statistically significant difference in live birth rates (LBR) was observed between the heterosexual couples and same-sex male couples. Sample sizes of single and transgender intended parents were too small (n < 5) to compare. The use of vitrified oocytes in surrogacy treatments has increased year on year, while fresh oocyte use has declined since peaking in 2019. There was no significant difference in LBR between fresh and vitrified oocyte usage across the cohort.

CONCLUSIONS

The number of surrogacy treatments steadily increased, with clear evidence that the proportion of same-sex male couples accessing surrogacy is a major contributor to this growth. Vitrified/warmed oocyte use now outstrips the use of fresh oocytes in the surrogacy treatment cycles studied here. The results represent a strong basis for supporting the liberalization of regulatory reform expected to be introduced in the UK later in 2022.

O governo da gestação por substituição na era da biotecnologia: as biolegalidades cambiantes do parentesco

Resumo Este artigo examina como o direito interage com as mudanças biotecnológicas, olhando para a maneira em que, em processos de reprodução assistida, justificativas legais se relacionam com o conhecimento biológico e social que está redefinindo “pai” e “mãe”. Usando o conceito de “biolegalidade”, foco no surgimento de novas formas de parentalidade legal, analisando como a reivindicação por direitos pode ser baseada em verdades tanto genéticas quanto jurídicas. Ao contrário dos entendimentos convencionais em que “a lei se arrasta atrás da tecnologia”, o artigo visa demonstrar como o conhecimento jurídico interage com as tecnologias e as ciências da vida para rearranjar os próprios entendimentos sobre os direitos. A partir das práticas dos tribunais australianos em relação à legalização da paternidade de crianças nascidas de uma gestação por substituição no exterior, analiso argumentos e decisões de casos federais e locais, demonstrando como uma “abordagem de direitos humanos” promovida por juízes que agem no “melhor interesse de a criança” desestabiliza a aplicação de leis australianas locais que proíbem a gestação por substituição comercial.

Options for acquiring motherhood in absolute uterine factor infertility; adoption, surrogacy and uterine transplantation

KEY CONTENT

Following the diagnosis of absolute uterine factor infertility (AUFI), women may experience considerable psychological harm as a result of a loss of reproductive function and the realisation of permanent and irreversible infertility.Adoption enables women with AUFI, and their partners, to experience social and legal parenthood, also often providing benefits for the adopted child.Surrogacy offers the opportunity to have genetically related offspring. Outcomes are generally positive in both surrogates and the children born as a result.Uterine transplantation is the only option to restore reproductive anatomy and functionality. While associated with considerable risk, it allows the experience of gestation and the achievement of biological, social and legal parenthood.

LEARNING OBJECTIVES

To gain an understanding of the routes to parenthood available for women with AUFI experiencing involuntary childlessness, such as adoption, surrogacy and, most recently, uterine transplantationTo consider a suggested management plan to facilitate counselling in women with AUFI who experience involuntary childlessness.

ETHICAL ISSUES

In the UK, while the number of children requiring adoption continues to increase, the number being adopted from care is decreasing.Some cultures may hold ethical or religious beliefs that surrogacy is unacceptable, and its legal position in many jurisdictions is problematic.Restrictive selection criteria and high costs may limit future availability of uterine transplantation.

Adoptive Gay Father Families: A Longitudinal Study of Children's Adjustment at Early Adolescence

Findings are presented from the second phase of a UK longitudinal study of 33 gay father, 35 lesbian mother, and 43 heterosexual parent families when their adopted children reached early adolescence. Participants predominantly lived in urban/suburban areas and were mostly white and well-educated. Standardized interviews, observations, and questionnaires of parental mental health, parent-child relationships, and adolescent adjustment were administered to parents, children, and teachers between 2016 and 2018. There were few differences between family types. However, adjustment problems had increased in all family types, with better parenting quality and parental mental health associated with fewer adjustment problems. The findings contribute to adoption policy and practice, and to theoretical understanding of the role of parental gender in child development.

Postdelivery adjustment of gestational carriers, intended parents, and their children

Surrogacy raises a number of concerns about the psychological adjustment of the surrogate, the parents, and the child. Despite surrogacy becoming more common, research into the postdelivery psychological adjustment of the individuals involved has lagged far behind. This review examines research on the psychological adjustment of surrogates and their children. It then presents findings from studies assessing parents' psychological health and parent-child relationships, and children's adjustment within families formed through surrogacy. Finally, it examines how children born through surrogacy feel about their birth and toward their surrogate. Overall, studies have shown good psychological outcomes for surrogates, parents, and children, but research is still very limited, particularly in relation to the geographical location of the research, the ages of the children studied, and the lack of longitudinal projects. Different forms of surrogacy now exist under the umbrella term of "surrogacy." There is now greater diversity in terms of who is using surrogacy, their motivations for using it, whose gametes are used for the pregnancy, and how a surrogacy arrangement is managed. There is therefore a need for future studies to examine the consequences of these different forms of surrogacy on the postdelivery psychological health of surrogates, surrogacy parents, and their children.

Parents' relationship with their surrogate in cross-border and domestic surrogacy arrangements: comparisons by sexual orientation and location

Objective

To study heterosexual and gay couples' relationship with their surrogate and their disclosure decisions when the surrogacy arrangement was completed domestically compared with internationally.

Design

Cross-sectional study.

Setting

Not applicable.

Patient(s)

Participants were 40 gay couples and 76 heterosexual couples who had domestic surrogacy in the United Kingdom (UK) (n = 38) or international surrogacy in the United States (n = 58) or Asia (20). Most (75%) of the children were aged <4 years.

Intervention(s)

Online surveys containing open-ended and multiple-choice questions.

Main Outcome Measure(s)

Experiences of finding a surrogate, relationship with the surrogate, and disclosure to the child were examined among UK parents who had undergone surrogacy in the UK, United States, or India/Thailand.

Result(s)

Parents who had surrogacy in the UK and United States felt very involved in the pregnancy compared with those who had surrogacy in Asia. Couples whose surrogacy was completed in Asia were less likely to want contact with their surrogate after the birth and were also less likely to have any current contact with the surrogate. Parents who had surrogacy in the UK and United States described positive relationships with their surrogate. Gay couples intended to tell their child about surrogacy more than heterosexual couples.

Conclusion(s)

The specific country where couples conducted their surrogacy arrangement (i.e. United States, UK, or Thailand/India) was associated with how involved they were in the pregnancy and their contact with the surrogate over time. Limitations of the study include use of survey methodology and that the representativeness of the sample is not known.