The Heartbreaking Truth About How It Feels When The UK’s Surrogacy Laws Have Failed You

Sophie Beresiner has spent over four years trying for a baby. Now she’s on a surrogacy journey, and says outdated British laws need to change

Uk surrogacy laws

by Sophie Beresiner |

I’m a 39-year-old beauty journalist six years into a happy marriage – and yet I’m definitely in a life situation I never imagined for myself. I’m sure my husband didn’t foresee our current circumstances either, but the good news is that he’s the kind of man who will not only dive head first into a marriage with a cancer survivor, but also embrace a surrogacy arrangement in the States to try and create the family we always wanted. I’d say the emotional roller coaster we have been on would, by this point, have made most people get off and puke behind a bin.

There was a story in the papers recently that conveniently linked the beginning of my own infertility struggle with–I hope the-end. It’s a story of hospital blunder meets kick-ass family- court lawyer, the case of someone known as Claimant XX. She was awarded damages to cover the cost of having children by surrogacy in the US by the UK hospital that repeatedly failed to spot her cervical cancer, resulting in the complete loss of her fertility.

My fertility was ended by my treatment for breast cancer; I was diagnosed in 2010 at 31. I had six months of chemotherapy, a mastectomy, radiotherapy and then years of hormone-suppressing remission therapy. Mind-bogglingly, the hospital I was treated at did not offer me the chance to freeze my own eggs before treatment – a conversation that should take place with any young woman receiving cancer care.

I am cancer-free now, but I’m also fertility-free. Ovarian malfunction, error code 404: Follicles Not Found. This is something we discovered at the start of a gruelling four years of trying, encompassing five rounds of IVF in Russia (because I have Russian heritage, it seemed more affordable and there was no waiting list for donor eggs), two pregnancies, two miscarriages and seemingly endless heartbreak.

The most interesting part of that news story for me, though, is the unanimous decision by the court of appeal judges that XX should be entitled to costs of commercial surrogacy in the States, rather than the altruistic surrogacy option that exists in the UK. The most obvious difference between British and American surrogacy is that it is illegal to pay a British surrogate anything more than ‘reasonable expenses’, whereas a US surrogate is paid a fee on top of their expenses. XX said after the ruling, ‘The uncertainty and lack of control for me of surrogacy arrangements in the UK was terrifying, and not something I would have done unless it was my only option.’

Ah. I hear you, XX. This is precisely my own stance, and exactly why, after a lot of research, a year and a half ago we began our own surrogacy ‘journey’ in America (in the fertility-lingo rule book the use of ‘journey’ is non-negotiable). When we decided to take this path, it was mostly in an effort to escape the UK’s archaic laws. The lack of regulation here around the logistics is shocking. While it’s common practice to draw up an ‘agreement’ between the intended parents and the surrogate, it will never be enforceable in a UK court, and as such the surrogate can change her mind up to six weeks after the birth.

Imagine! It’s rare this happens, and a court would likely side with the intended parents in the end, but that takes a court case, uncertainty and heartache. In the States, a bulletproof contract protects both parties, eliminates exploitation from either side from beginning to end, and takes a large chunk of worry away – for a large chunk of money, of course.

It’s a tough pill to swallow, now that I’m here, having exhausted all my other efforts to have a family. I have adapted to these levels of disappointment as if I’m walking down a very steep grief staircase. Top of the stairs, have your own baby ‘normally’. Can’t do that? OK, grieve it, take a step down and adapt to the next best option: have a baby using donor eggs. Not compatible with your body and time-frame, I’m afraid. Take a step down and concentrate on the next thing: surrogacy, in your own country. Well no, because alternative routes to parenthood might be perfectly normal now, but the laws have not managed to keep up.

I want to work on that, and I suspect now might be a good time. Earlier this month, the Law Commission recommended that surrogacy laws be updated so intended parents become legal parents as soon as the baby is born. Sarah Williams, a barrister at family law firm Vardags, explains why the case of XX is so significant. ‘It means the interpretation of surrogacy laws have fundamentally shifted from where they originated. Years ago, the idea that an intended parent could ask an English court to authorise payments to an overseas surrogate – and therefore deem it to be acceptable in the eyes of the UK law – was unthinkable.’

I want to be able to make this experience count for something, because as exciting as the process can feel at times, it’s shrouded in sadness and frustration. I thought, after all the bad luck and disappointment leading us to surrogacy, that once we took the plunge we’d be taken care of – swept away on a beautiful road to our inevitable baby. This couldn’t be further from the truth. We’re on our fourth surrogate: things keep falling through, costs keep escalating – and the US is not turning out to be the gold standard we’d hoped for. Every day we don’t succeed is another day I’m reminded about what we don’t have because of what my body cannot do.

If I can get something good out of this, if I can help to change the laws so that people like us and Claimant XX aren’t pushed out of our own country in pursuit of more appropriate laws, then it will feel entirely worth it. And hopefully, just maybe, I’ll have a child who will be proud of what their mum did to get them here

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