Modern Family: International Surrogacy

Posted on 21 December 2021

The Mishcon Academy Digital Sessions.  Conversations on the legal topics affecting businesses and individuals today.
 
Antonia Felix

In this episode we speak to Anna Buxton, an international surrogacy co-ordinator at My Surrogacy Journey, about her personal journey to parenthood following the birth of her three children, all born via international surrogacy, and how My Surrogacy Journey can help intended parents.  What are the legal considerations in an international surrogacy arrangement and how does Anna recommend building a relationship with an international surrogate?

Hello and welcome to the Mishcon Academy Digital Sessions podcast and to this, the second in our Modern Family series.  I’m Antonia Felix, a Partner in the Family Department at Mishcon de Reya and I’m here today with Emma Willing, also a Partner in the Family team and we’re joined today by Anna Buxton.

Emma Willing

Anna and her husband, Ed, are parents to Isla and twins, Olive and Art, following two surrogacy journeys.  Anna had a long and difficult journey to motherhood and medical procedures and miscarriages for over eighteen months.  Due to very long waiting times in the UK, Anna and Ed looked to international surrogacy with Isla being born via a surrogacy arrangement in India and Olive and Art in the US.  Both journeys were complex and at times, challenging.  As a result of her experiences, Anna started to help other intended parents, drawing on her own journeys to support and educate them.  Anna has worked with the San Diego Fertility Centre, where her twins were born, to help couples and she now works for My Surrogacy Journey.  We were previously joined on the podcast by Mike and Wes Johnson-Ellis, Founders of My Surrogacy Journey and we are really excited that Anna has been able to join us today. 

Antonia Felix

Yes, thank you, Anna, for joining us.  You’ve had an incredible, busy twelve/eighteen months working with My Surrogacy Journey during the Covid crisis and juggling parenting for Isla, Olive and Art.  So, before we talk further, I know that everyone would like to hear a little bit more about your family. 

Anna Buxton

Thank you, thank you for having me.  So, as you said, we have three children, Isla is nearly 7 and she was born in India and the twins are 3½ and they were born in California.  And when, just after, the twins were born, I used to work in investment management and I’ve always been really open about my struggles to build a family and just the more I talked about it, just by word of mouth, more and more people kind of came and asked me about my experience and that’s why I ended up moving out of investment management and working with a San Diego Fertility Centre and My Surrogacy Journey now.  There are many more people talking about it and obviously with social media there’s a really big community but when we started there were very few people talking about it and when you, if anyone is considering surrogacy, when you start thinking about it, it feels like this insurmountable task and it’s really daunting.  So, being able to do this now and talking to people and helping people through my own experience is great. 

Antonia Felix

Yeah, because we talk so much about surrogacy now but obviously, as you say, back then not as many people did talk about it and people’s journeys are so different to get to the decision-making process of saying I want to go through surrogacy and so, did you feel still that it was a bit of a taboo subject and that you had to almost justify your decision to other people?

Anna Buxton

Yes, I mean it sounds very strange to say this but I always slightly now, retrospectively, consider myself quite lucky because I was told, following a miscarriage and medical procedure that I would 100% never carry a pregnancy and that surrogacy was my only option.  For many couples, they’re not given that definitive it’s never going to happen but they’ve probably been struggling for years with unexplained infertility and so making the decision to pursue surrogacy can be really difficult because it is taboo.  As a woman you feel like you’re sort of giving up and so, having more people talking about it and realising that it is an option, that it’s a really good option for some people, I think it is really important.

Emma Willing

And how do you feel then that the landscape has changed from when you had Isla to now, in terms of the way in which people are having a conversation about surrogacy?

Anna Buxton

It is just more that there are just that many more people talking about it, being open about it.  I think there are more professionals more engaging, you know, doing this, I don’t think there are any law firms talking openly particularly about surrogacy when we were doing it, we kind of struggled to find someone who, in this country, was you know, that they were professional.  So, there’s just more and more people out there supporting everyone. 

Antonia Felix

So, one of the things that people worry about, particularly in the UK, is the surrogate changing their mind and this panic that the plan will change and also letting someone else carry the child that you’ve longed for if you’ve had that fertility journey beforehand.  Do you have top tips of how to deal with feeling comfortable with your surrogate and some people obviously decide not to get to know them that well and then it might change or they really want to have that relationship?  What was your experience as well?

Anna Buxton

We always wanted to have children in the UK with a surrogate here because I wanted to be close to the pregnancy. Given the timeframes that were being quoted to us at the time, the organisations that were helping people were quoting three plus years and we’d already had three years of infertility so, that is what took us abroad and we never struggled with the idea of another woman carrying our child.  If you’ve ever faced childlessness that didn’t want, the fact that you then get to a point where you’re pregnant, you just feel so grateful that we live in a world where this is possible and there are women out there who will do this that that, you know, I just didn’t struggle with those feelings.  Occasionally, obviously, I would get pangs of seeing people with a bump or looking at pictures on Instagram and it would make me sad and it still does a little bit today but it never took me very long to get over those feelings because I would remember that we were pregnant and know I was going to be a mum so, I always say to people, don’t worry about that or worry about it but it really is something that isn’t difficult once the process starts.  In terms of your relationship with a surrogate, I think it’s really hard to anticipate what it’s going to be before you’ve met that woman.  So, I would say to people remain open-minded because you just don’t really know.  The biggest thing about surrogacy is you have to have trust in a relationship.  It’s a very hard thing to put into words how surreal it feels being pregnant, if you are doing it internationally, with a child, albeit in utero, thousands of miles apart and you have no tangible control or role in that pregnancy at all, yet in six months’ time you are going to be a parent and you have to trust that that woman who is carrying your child, is going to look after and nurture the pregnancy in the same way that she would have done her own and that’s really hard when it’s an absolute stranger so, the really important thing is to find ways to communicate and to trust each other.  I remember with Holly and I – so, our surrogate in California – we found that a really sort of regimented way of communicating helped because she, like many surrogates, she had young children, was really busy, while our pregnancy was really important to her, it wasn’t the only thing in her life, she had her own family and her own work to deal with so, me kind of sending messages every 20 minutes, she felt pressurised to constantly be replying and that put pressure on her.  I constantly needed reassurance so, we said, ‘listen, you know, every morning when you wake up, just send me a message saying, you know, the babies are kicking, I feel fine’ and then I just knew not to bother her.  For some people, they need less than I did, some people need more so, I would just try and work out what’s going to work for both of you. 

Emma Willing

And Isla’s obviously now 7 and Olive and Art are 3½.  Isla, does she have an understanding now?  Do you talk to her about your journey?

Anna Buxton

Yeah, we have talked about surrogacy in our household, even before kind she could understand, it just became part of the language in the house.  Her nursery is filled with, you know, memorabilia and pictures from India, as is the twins.  It’s never really been something that we revealed to her, it was just, it just sort of is what it is and children are so, so amazing and so pragmatic, that she just doesn’t consider it.  I always just say that mummy’s tummy didn’t work and another mummy helped grow her and she sort of says great and sounds a bit smug but I think, and maybe I’m allowed to be smug about the kids but you know, I always say to her, you know, the more people it took to bring her into the world, the more love it took and she, you know, she thinks she’s a bit of a miracle, which is fine by us. 

Emma Willing

Yeah, that’s lovely. 

Antonia Felix

Do you think that there should be a wider conversation at sort of in schools and is part of education that this is how people can have children?

Anna Buxton

I’ve always, I spoke to you, Isla’s nursery and now her school and have always said, you know, this is how she was brought into the world so please be really conscious about the language you use around family building and what a family looks like and they have been fantastic and very open and really considered her needs when it comes to those conversations. 

Emma Willing

And similarly, what was your experience when you were working?  How did your workplace, did they have policies in place at that stage to deal with what’s happening?

Anna Buxton

They didn’t.  At the time, I worked for quite a big firm and they didn’t have a policy in place.  They were very supportive and essentially adapted the adoption leave policy for me.  Although they were very supportive, having to kind of constantly adapt the language, it was as good as it could have been I think at the time, looking back I think actually companies should have policies and it should have the right language but they were very good, I mean, I think I did a lot of the, you know, the IVF, I did seven rounds of IVF without telling them, I think there’s a lot generally of how people treat fertility treatment in the workplace and there’s a long way to come for that and I didn’t help, because there was obviously no physical sign of me being pregnant, I didn’t tell them till quite late in the pregnancy so, I was doing a lot of it sort of behind closed doors, which wasn’t, which wasn’t easy so, I always say to people, you know, if you can and if you feel comfortable, you know, tell people as soon as you can because you need support, in the same way as if you, well not in the same way as if you were carrying a pregnancy but you do still need some support. 

Emma Willing

Yeah, you definitely do.  And that is changing, I know firms are looking at the wider way of supporting people with family building.  Just going back to when you had both of them so, what was your experience of bringing your babies home back to England when they were born?

Anna Buxton

Very different between India and California.  So, so when Isla was born, in India although you can’t do surrogacy in India anymore but this is similar to other destinations now, Isla was born, she didn’t qualify for an Indian passport but she didn’t get a UK passport so, we actually spent six months living in Delhi waiting for her passport, which you know, Delhi is not the easiest city to live in, especially with a new-born baby and the stress of not knowing how long it was going to be to get that passport, we got it the day our visas ran out, it was really stressful and in the end it was our UK lawyer who really pushed and pushed and got us home.  So, I would say to anyone who is considering surrogacy, where you can’t come home on a passport where the child was born, you know think about that time and early, early speak to lawyers because it is a very difficult and stressful time.  Then flipping to the twins and given that they were born in California, the legal part of it being very different to India and they got their American passports, we came home after, we actually came home after about ten weeks but that was because we just wanted to spend that time out in California, lots of people come home much more quickly, it was a really easy and easy process and it was great. 

Antonia Felix

The immigration side of things obviously, is a key consideration in any international surrogacy arrangement but what other advice would you give to intended parents considering an international arrangement?

Anna Buxton

Gosh, there’s lots.  I think the biggest challenge we had when we were considering international, was firstly finding trusted information out there is very difficult, better now but it is still difficult and secondly, I think balancing your often desperation to build a family with the time it takes to pursue essentially a responsible journey, is really difficult.  So, you have to, you have to take a step back and firstly think, you know, however desperate you are to have a family, that cannot come at the expense of another woman’s wellbeing or even human rights and secondly, that… Ed and I always said, you know, any child that we brought into the world through surrogacy, had a right to a story about how they were born that was ethical and responsible and that we were proud of and when they were older they could be proud of sharing so , I would always say to people, firstly take that step back and really think about where you’re going to go.  Because of those considerations, when we went to India we physically went out to India, we visited clinics, we spoke to lawyers, we spoke to charities, we saw some things that we were absolutely not comfortable with but then we found people who were doing surrogacy in a responsible, ethical way and we were really comfortable and then we moved forward and Isla was born.  We then, when we came to our sibling journey, before going to the US we actually tried Canada and because it was Canada, we thought well it’s Canada, you can trust everyone, it’s, you know it’s a lovely country so, we went in totally blind and naïve and ultimately, we were matched with a woman who neither physically or emotionally should never have been a surrogate.  We weren’t supported, she wasn’t supported, we had to failed transfers, a miscarriage and you know, suffered untold heartache, both us and also our surrogate, and it had a huge financial impact.  So, I would always say to people, do your due diligence, surrogacy is emotionally and financially and physically and legally really complicated.  Nothing is insurmountable but you need to understand all those buckets and understand what goes into all of them and I think ensure that any woman who is going to be your surrogate is given the time and the space and the resources to make sure she’s educated on all of those things and make sure that whether it’s the clinic or the agency or her lawyers, do all of those things and once everyone is educated, once everyone knows their expectations, what do you expect of each other, then you can have a balanced relationship and ultimately that is what needs to, hopefully, a successful surrogacy journey.  And that’s really where My Surrogacy Journey came from, it was about connecting people with the right information and the right professionals so that they can build a sort of trusted team to support them. 

Emma Willing

And that was actually going to lead onto my next question.  So, if someone doesn’t know where to start but they know that that’s the journey they want to go on, they come to you at My Surrogacy Journey and what happens then?  Just so that everyone understands exactly what you do and we heard a bit before from Mike and Wes as well. 

Anna Buxton

So, if someone is considering international, what we will do is look at the options and at My Surrogacy Journey generally we’re talking about the US and Canada.  First and foremost, international surrogacy is phenomenally expensive and it’s really important for people to understand why it’s so expensive, all the buckets of costs, so they can understand it if fits right for them.  So, we go through the costs, the budget, their expectations in terms of timeframe, the legal considerations and once we sort of know all of that, it’s then we start helping to kind of build that trusted team.  So, whether you are creating embryos in the UK and shipping them or creating them in the US, whether you need an egg donor, we match them with professionals to build… I keep coming back to the same thing about kind of building this team but that’s what you need to do and I think it’s really important for people to choose the clinic that they like and they trust and the agency and the lawyer so, we give them access to those people and then, and people then choose who they want to work with. 

Antonia Felix

So, you and Ed, on both of your surrogacy journeys, obviously because the waiting times in the UK at the time, opted for international options.  Is it the case that it was the landscape, the legal landscape, in the UK at the time and as it is now, still, that put you off?

Anna Buxton

It definitely was a consideration.  One of the things about the US is that you have a contract with your surrogate which is legally binding and that is really comforting, to know that you have that.  Number one, it makes you talk about a lot of things and that it’s in paper and just everyone knows sort of those expectations and then equally, that worry that although it never really happens that in the US as soon as that baby is born, you are the legal parents, is just really, really nice to know so, it was definitely something that attracted us there.  You, in the UK, given that the law currently is so grey and it doesn’t, it just doesn’t protect either surrogates or intended parents and therefore really the children, it just is an added layer of worry and complexity that you don’t really want when you’re going through so much already.  As you mentioned earlier, Antonia, often people say well what if the surrogate wants to keep the baby and that, and that really doesn’t happen and again it comes back to if you’ve got a balanced relationship, that’s not going to happen but what always surprises me is when I speak to surrogates is that they always say, what happens if I get left with a baby that I, it’s not my baby, I don’t want it and that is really indicative of the mindset of a surrogate, she was doing this to help people a family, she doesn’t want a baby so, I think, you know, hopefully, fingers crossed that law reform will clear up some of that kind of ambiguity in the law at the moment.  I think one of the things, when people are doing surrogacy in the US is that because of the structure there and how a legal framework is, they say well I’m the parents in California and we’ll fly them home and they forget that in this country, we don’t adhere to Californian law and so I, and I never quite know, is it exactly the same process when you come back to the UK?

Emma Willing

Yes so we often have clients coming in and they might have approached various organisations in the US and as you’ve covered, they will be considered the legal parents in certain states in the US, with the pre-birth orders but there is a misunderstanding that even though they maybe the legal parents in international surrogacy arrangement in the country in which the baby is born, when they come back to the UK they then have to go through the process of applying for a parental order and I think obviously that’s where My Surrogacy Journey is doing such great work in educating people about what the position is. 

Antonia Felix

Yeah, and there’s also other issues that people need to think about like Wills and guardianship and tax issues and things like that that you don’t even consider would be part of having a baby and the earlier you think about that, exactly as you say, the better because you don’t want to have to deal with it when you’ve got your lovely baby and you just want to go home and enjoy being a parent.  So, as much as you can do earlier, I think is better and that’s always our message and often it’s just forgotten because there’s lots of other things to focus on. 

Anna Buxton

Often people with international journeys say, oh my goodness, you know the international parental is heard at the High Courts and that’s where we went for both of ours and it assumes again quite a sort of daunting thing and you think, well I’ve got my baby, why do I now need to go and have someone tell me I’m a legal parent, I already am and I always say to people, honestly, those two days I think were kind of the happiest in our whole kind of… well, obviously not when the babies were born but they were such wonderful days because generally they are heard at the Family Courts, the Judges there, I think there are only a few who do them, are so supportive and so lovely and it feels like such a sort of grand fitting way to represent kind of the magnitude of what we did to kind of have our baby that it just was this both times we had them, it was this wonderful celebration of sort of everything that we went through to get them and then at the end we’ve got really nice pictures in the courts and with the judge and we had a nice lunch so…

Antonia Felix

I mean, as family lawyers, it’s the best isn’t it Emma to be able to help someone actually have a family.

Emma Willing

Definitely.  I think for both us and for the High Court judges, it’s probably the more joyful aspect of our work as family lawyers. 

Anna, thank you so much for joining us today, it’s really amazing how you share your own journey to help others and we know it’s helping others make the decision to parenthood with more knowledge and understanding.  We very much look forward to following and supporting you in your future work.

Antonia Felix

And I’d like to say thank you to Anna for joining Emma and me for this Mishcon Academy Digital Sessions podcast.  I’m Antonia Felix and do look out for the next episode in the series.

The Digital Sessions are a series of online events, videos and podcasts, all available at mishcon.com and if you have any questions you’d like answered or suggestions of what you’d like us to cover, do let us know at digitalsessions@mishcon.com.  Until next time, take care.

 

 

The Mishcon Academy Digital Sessions.  To access advice for businesses that is regularly updated, please visit mishcon.com.

In the latest episode of our Modern Family podcast series, Partners Emma Willing and Antonia Felix were joined by Anna Buxton, an international surrogacy co-ordinator at My Surrogacy Journey.

Anna discussed her personal journey to parenthood following the birth of her three children - all born via international surrogacy - and how My Surrogacy Journey can provide for people on their journey through Surrogacy.


Visit the Mishcon Academy for more learning, events, videos, podcasts and reports.

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