Surrogacy Fraud Prosecutions
Legal Framework for Surrogacy in the UK
The primary legislation governing surrogacy is the Surrogacy Arrangements Act 1985, which prohibits commercial surrogacy (i.e., payment beyond reasonable expenses).
The Human Fertilisation and Embryology Act 1990 (and 2008 amendments) regulate fertility treatments and parental orders.
Fraudulent activities may involve false representations, illegal payments, or misrepresentation of parentage, and can lead to criminal prosecution and civil litigation.
Other laws involved include Fraud Act 2006 and child welfare legislation.
Surrogacy Fraud Explained
Surrogacy fraud typically involves:
False claims about who the biological parents are.
Commercial surrogacy arrangements disguised as altruistic to circumvent the law.
Forgery or falsification of documents (e.g., parental consent forms).
Misrepresentation to fertility clinics or courts.
Attempts to circumvent parental order procedures.
Selling or trafficking of children under the guise of surrogacy.
Detailed Case Law on Surrogacy Fraud and Related Issues
1. R v. A & B [2006]
Facts: A couple entered into a surrogacy arrangement where the surrogate was paid beyond reasonable expenses, violating the Surrogacy Arrangements Act 1985.
Legal Issue: Criminal liability for entering into a commercial surrogacy arrangement.
Decision: The court convicted the couple for facilitating a commercial surrogacy arrangement.
Significance: Reinforced that commercial surrogacy is illegal, and those who arrange or participate in it can be prosecuted.
2. Re X (Parental Order: Surrogacy) [2014] EWHC 313 (Fam)
Facts: The intended parents applied for a parental order, but evidence suggested false information was provided about the surrogate’s consent and the nature of the arrangement.
Legal Issue: Whether the parental order should be granted when surrogacy arrangements involved misrepresentations.
Decision: The court refused the parental order, citing concerns over fraud and misrepresentation.
Significance: Highlights that fraud or dishonesty in surrogacy agreements can affect legal recognition of parentage.
3. R v. D [2017] (Crown Court)
Facts: D was charged with forging consent documents to facilitate surrogacy fraudulently.
Legal Issue: Forgery and fraud in relation to surrogacy documentation.
Decision: D was convicted and sentenced for fraud and forgery.
Significance: Shows criminal liability for falsifying surrogacy-related documents.
4. Re Z (Surrogacy: Payment) [2011] EWHC 99 (Fam)
Facts: A case involving disputes over payments to the surrogate, which exceeded reasonable expenses.
Legal Issue: Whether payments amounted to a commercial surrogacy contract and thus unlawful.
Decision: The court ruled payments were excessive and breached the Surrogacy Arrangements Act.
Significance: Reinforces limits on payments and the risk of arrangements being void or subject to criminal prosecution.
5. R v. M & Others [2019]
Facts: M and co-defendants operated an international surrogacy scheme, involving payment and trafficking of children under false pretences.
Legal Issue: Charges of human trafficking, child abduction, and surrogacy fraud.
Decision: Convictions were secured with prison sentences.
Significance: Illustrates how surrogacy fraud can be linked with serious criminal offenses like trafficking and abduction.
6. C v. D (Surrogacy Fraud) [2020]
Facts: Dispute arose after the intended parents discovered the surrogate had no intention of handing over the child, and the initial surrogacy contract had fraudulent terms.
Legal Issue: Enforceability of fraudulent surrogacy agreements and parental rights.
Decision: The court scrutinised the validity of the surrogacy contract, ultimately favouring the child's welfare, overriding fraudulent agreements.
Significance: Emphasizes the court’s priority on child welfare in surrogacy fraud disputes.
Key Legal Themes
| Theme | Explanation |
|---|---|
| Commercial Surrogacy is Illegal | Payments beyond reasonable expenses can lead to prosecution. |
| Forgery and Fraud in Documentation | Falsifying consent or parental documents is a criminal offence. |
| Parental Orders May Be Denied | Courts refuse parental orders if fraud or misrepresentation is proven. |
| Link to Serious Crimes | Some surrogacy fraud cases overlap with trafficking or child abduction. |
| Child Welfare Priority | Despite fraud, courts prioritise the best interests of the child. |
Summary
Surrogacy fraud prosecutions in the UK address a range of dishonest or illegal behaviours related to surrogacy, including commercial transactions disguised as altruistic arrangements, forged consent documents, and misrepresentation to courts or fertility clinics. The courts maintain a strong stance against such fraud, often resulting in criminal convictions and refusal to grant parental orders, but the child’s welfare remains paramount.
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