Travel restrictions introduced as a result of the Covid-19 pandemic are causing difficulties for patients who would otherwise have been able to travel abroad for surrogacy treatment. To overcome these difficulties, many patients are seeking to export their gametes or embryos to their chosen overseas clinic. Some of these patients will be engaging commercial surrogacy agencies abroad and will be entering into compensated arrangements with their surrogates.
Whilst the Covid-19 pandemic has exacerbated the issue, we understand that there has for some time, been confusion as to whether it is possible to export under General Directions, whether there is a need to apply to the Authority for Special Directions or whether export for commercial surrogacy abroad is possible at all.
General Direction 0006 - Import and export of gametes and embryos
As you will be aware, if all the relevant conditions of General Direction 0006 can be satisfied, it is possible to export gametes or embryos overseas without making an application to the Authority. However, some clinics believe that commercial surrogacy abroad would be a contravention of the Surrogacy Arrangements Act 1985 and would therefore not be lawful if undertaken in the UK. As such, they are of the view that they would not be able to comply with paragraph 1(h) of Schedule 4 of the General Direction 0006 which states that “(h) the gametes or embryos are not to be exported if they could not lawfully be used in licensed treatment services in the United Kingdom in the manner or circumstances in which it is proposed that the gametes or embryos be used by the receiving centre.”.
In these circumstances, as highlighted above, clinics take different approaches. We would like to clarify how paragraph 1(h) should be read and what this means in practical terms.
The Surrogacy Arrangement Act prohibits people, agents and intermediaries from negotiating surrogacy arrangements in the UK on “a commercial basis” and prohibits the publication of advertisements regarding surrogacy arrangements. There are however important exceptions to this for the intended parents, prospective surrogates and not for profit agencies. It is not a breach of the Surrogacy Arrangements Act for the intended parents or prospective surrogate to carry out acts that are otherwise prohibited, and not for profit agencies in the UK may undertake certain activities that would be prohibited if undertaken by a commercial surrogacy agency.
What does this mean for clinics?
As stated above, Paragraph 1(h) of Schedule 4 of GD0006 provides that “gametes or embryos are not to be exported if they could not lawfully be used in licensed treatment services in the United Kingdom in the manner or circumstances in which it is proposed that the gametes or embryos be used by the receiving centre”. The emphasis is on whether the ‘use’ of the gametes or embryos in licenced treatment services in the UK would be lawful. In other words, would the fertility treatment provided by the licensed clinic to the surrogate and intended parents be lawful; the short answer is yes it would, provided of course that all relevant requirements pertaining to consent etc. have been complied with. How that arrangement was facilitated does not affect the lawfulness of the treatment services the clinic provides.
Therefore, provided the UK clinic can satisfy all the requirements of Schedule 4 of General Directions 0006, it may export without having to apply for a Special Direction notwithstanding that the intended parents intend engaging a commercial surrogacy agency abroad.
We hope this clarification is helpful. Should you have any questions, we would encourage you to contact your inspector to discuss.