 Nicolw我不 addai fod y bwrddёт i'r gofod yng ngwych yw yn digwydd i chi fel y gilyddai y mentech ac na all o marозionball sy'n eu meddylu ac y dywed yn redyn nhw'n deoedd gyffodus gan asfawr panreal ychydig ac opto ar gyfer drwsgrill yma ar y gair ar grants yrdydd ym gychart aiced bod ganddoedd i'ch hyn aheld arbennig i'r pyfe o determiner yn ei rhywbeth ar weithio RwyonaethYour very brief If they are impressionistic, I apologise for the fact that they come from a lawyer, and even worse than that English lawyer, to forgive my perhaps parochial view of life. I want to simply pick out some trends, as they seem to me, and some ideas that seem to me to emerge from the last two days. One is that increasingly there seems to be a general recognition that surrogacy is something which is there as a legitimate means of forming a family, but of course there is a very long way to go, and the two demonstrations of that are the menacing family who spoke so powerfully yesterday and the Spanish-Ukrainian issue which has just been articulated. I'll come back to the international problem. One message which seems to come through is that the earlier a state legislated, the more out of date that legislation is, and there are, in effect, two demonstrations of that. The fascinating historical survey we have given of the USA position was immensely illuminating, and the work which the law commissions in this country are doing very much goes to make the shame point. Our legislation in this country is elderly by any standard. It only works because of the judicial ingenuity which goes into making rules which are not fit for purpose actually work. So legislation is the way forward. Anything to do with reproduction nowadays, anything to do with surrogacy nowadays, marches forward at an incredibly fast pace. So the legislation may become out of date very quickly, reflecting both changes in science and changes in social attitudes. So the process of updating and keeping legislation update, I suspect, is an ongoing process which will not come to an end for a very long time. Now we had, in terms of the program, a very interesting conceptual distinction between four different approaches, and that analysis I think is very useful as a tool to understanding. But one of the impressions I've got is that in relation to the tolerant approach, the free market approach, and the regulatory approach, they are in fact converging fairly rapidly. And although the American approach was tackarded as the free market approach, I hope I went to offend our transatlantic colleagues by saying that in fact the emphasis of what we were listening to was very much on regulation. And the impression I have is that wherever we started from, we are increasingly moving towards a process and an approach of which one might describe as regulation. Now there is, of course, that leaves on one side the prohibitive approach, which I venture to suggest it might be thought is becoming increasingly inactive. What is very troubling about the prohibitive approach is the very simple fact of life that when one comes to matters like having a family, people will want to have families, and if they cannot have the family they want by staying within their own state, they will go abroad to find it. The consequence of prohibition, whatever it is you are prohibiting, is that people will go to find what they are looking for. And the consequence of that is very well illustrated from different perspectives, both by the menacing family case and by the instance I have just been listening to about the Spanish created problems which our friends suggest are unfairly focusing on Ukraine. And I think he's suggesting it's a Spanish problem or a Ukrainian problem. But whatever it be, what those cases demonstrate is that the consequence of the prohibitive approach is to focus attention on what I call the rule of recognition. What in state A, whose people go to state B to have their child, is the rule of private international law which determines whether or not administrative or judicial processes in state B do or do not have recognition. And in essence we heard very interesting material from France where because of the French domestic approach to this, the focus of the international private international law issue was in applying the French concept of the birth certificate in the case of the foreign birth certificate. It is a very real problem, and not least in this country, in England and Wales, where our rule of recognition is such and very long established, our rule of recognition is such that no foreign determination in the service in case, whether it arises by operation of the foreign law or by operation of some foreign administrative process or indeed some foreign judicial process, is recognized in England and Wales. And that is why we have the problem, which has been referred to more than once, of the limbo between the child coming back, stateless, parentless in English law, and the point at which the parental order is made, if indeed the parental order is ever made. Now, that is a very big problem. What's the way forward? Well, the impression I have is, as I say, that increasing the view is, unless you're a prohibitionist, or wants to move to some system of regulation. And one question which arises is very neatly encapsulated in the comparison between what we were told about what goes on in the Republic of South Africa, and on the other hand, the UK law commission's proposals is the question of whether the process should take place before conception or after the birth. And as I understand it in the Republic of South Africa, it is a pre-birth process. And as you were told yesterday, the pathway being proposed by the English and Scottish law commissions is again for a pre-birth process. In contrast, of course, the current English position is a post-birth process, which is the very thing which creates limbo and all the other problems. So that one great question seems to me to be, is if one is going to move to the regulatory position, does one adopt, as a matter of principle, a pre-birth process or an ex post-hack day process? And I have the impression from listening to the various contributions and papers that the consensus seems to be moving towards a pre-birth rather than a post-birth process. Now, that it might be thought is probably right for two quite distinct reasons. One is that you can only have, I suspect, real protections if there is an effective process of regulation pre-conception. And the reason for that, as we have discovered in this country, and Lucy hinted at it just a few minutes ago, is if you have a post-birth process and the judge is presented, if it's a judicial process, ex post facto with a live child who is living with ex and why. If you don't make the order, then the consequence in a jurisdiction like ours is that the child remains parentless and maybe stateless in a completely legal limbo. And therefore, whatever attention you pay to welfare, however carefully the welfare reports put together, however much you try and focus on the best interests of the child, I suspect, and this seems to accord with a lot of discussion we've heard over the last two days, the best protection for the best interests of the child is by a pre-birth rather than a pre-conception rather than a post-birth process. Now, another question which arises, and I'm identifying issues rather than necessarily writing the answers, is should the process, whether pre-conception or post-birth, be a judicial process or a administrative process. And there we have the instant contrast between the South African model, which is unequivocally a judicial process, and on the other hand we have the proposals of the United Kingdom law commissions for a process which is not judicial, and I might describe as being administrative. Now, which is better? That is not a matter I'm going to pass as an answer to, although it may surprise you to think to hear, like often thought, as an evens of judge, there are many things better left to mechanisms which are not judicial. But it does seem to be an important question, and it's one which the law commission has come to be very clear of you on, and it is interesting to have the contrast. That's one of the great advances of these conferences, one that discovers what's going on elsewhere. Now, given the problems, in particular the international, private international law recognition problems in relation to international surreducy arrangements, what is the way forward? Well, one approach I suppose is model laws, and if one's going to have model laws, they have got to deal with two separate issues, it seems to me. The domestic, what should the domestic law be, what should the minimum requirements within the domestic law of state be, but even more critically if one's going to have model laws, one needs model laws dealing with the rules of recognition. The public international law rules governing the consequences of transnational international surreducy. And the more I listen to what we heard about the hay conference approach and the comments, it does seem to me that probably that is our best chance of moving forward and getting workable rules, at least in relation to the recognition issue. And I suspect that given the different views held in different countries about the goodness or the badness, the appropriateness or the inappropriate surreducy, views which are often affected by cultural, religious, social, historical things, it is going to be difficult to establish any kind of international consensus on the substantive content of domestic law unless it is, as has been suggested, to establish minimum requirements of an appropriate regime. It may be that the single most important way forward is to encourage the Hague machinery to move as fast as possible to some internationally, and that sort of criticism of them. These things take time and we were delicately hinted at that the activity of the Hague expert group is determined, the pace was determined by what governments do. But given that the menacing family case and the Spanish thing which has been hearing about are so fundamental in terms of the human consequences for the people involved, it does seem to me that what is a lawyer, I call the rule of recognition, the private international law rules are those which are most urgent in our attention and which may soon get us to where we need to get to. I mean it was profoundly moving listening to the members of the menacing family yesterday, as indeed it was listening to the other presentations by women who were actually involved in the process, to realize bringing home to us the human realities of all this. And when one just pauses to think we heard hints of it this morning in the presentation of the research from India, we've heard it in the last few minutes in terms of the Spanish families who are trapped in Ukraine and Georgia and elsewhere. Because of the actions of their own government, the human misery must be immense. And although of course as family lawyers we all think that the interests of the child are paramount, you can't have a happy child if you are a miserable parent and one can't ignore the, dare I say, inhumanity of a system. Or international non-regulation, which permits what earlier was described as a wild west, if the consequences of that are that, to take up the example we just heard about, that there are Spanish families trapped in Ukraine and not, as far as I can understand, the responsibility of Ukraine directly. Now just two final observations. I mean it's easy to analyze this in legal terms, particularly if you're a lawyer, but I mean two big issues which have been hinted at from time to time over the last couple of days, but which perhaps because they're so distressing to think about are the elephants in the room, are first of all, looking at from one point of view, the risks of exploitation of surrogate mothers. And we have all known in our professional careers of the most shocking exploitation in the context of international adoption of mothers in financially deprived circumstances, mothers in what's conventionally called third world of developing countries, who have been the victims of that exploitation. And it would be idle to imagine that that is not going on even as we speak in the context of international surrogacy. And it was a very interesting, illuminating nazis we had this morning of the research which we were given a preview of in relation to the surrogates, the surrogate mothers in Gujarat. Well that's one side of the issue. The other side of the issue, which was touched upon yesterday in this case to the question of what should the regulatory mechanisms be, what should the protections be, is that because regulatory systems, particularly if they involve judicial proceedings, cost money, any system of that sort is privileging the wealthy over the less wealthy. So behind all the legal nazis, behind many things we've been talking about, there are two issues, both which reflect wealth on the one hand or the other, which one can't help feeling, do have a significant role to play. So we need to think about that. And the cost of regulatory systems, particularly if they involve judicial proceedings, are perhaps matters to be taken into account when one considers what kind of system one wants in the future if we want a regulatory system, how pervasive, how expensive, the American systems we've heard described are immensely impressive. They are to use a well-worn English strategy, the absolute Rolls Royce approach. But when one hears that for example part of an American regulatory process is that the intended parents are expected to foot the bill for all the services being provided to the surrogate mother, some of them on a regular basis. It does raise very starkly the issue. I have no idea what the answer is. It does raise very starkly the issue. Well that's a system which as the price to be paid for achieving the right solution in one direction is actually creating a privilege for the wealthy which is denied for the less wealthy. Those are just a few random thoughts. I'd like to think that in three or four years time, James, you can organise another conference where on this topic where there'll be fewer storm clouds and where we'll have a tremendous report from the Hague conference, but who knows. But for the moment, and I must shut up if you want your lunch. Thank you all very much for coming here. I hope you've all enjoyed it as much as I have and a tremendous great of thanks, James, to you and your teams, the speakers and not forgetting the foot soldiers, if I call them that, who have been so helpful to us in pointing us in the direction and so on and so forth. Thank you all very much indeed. I've gone away much better informed. I hope it's a little wiser. You've probably used it all already. Anyway, there we are. Many, many thanks to all of you.