Archive for May, 2011

Infertility, fertility law and treatment: how big a problem is it in the UK?

Friday, May 27th, 2011

The National Institute for Health and Clinical Excellence (NICE) defines infertility as failing to get pregnant after two years of regular unprotected intercourse.  Infertility is the commonest reason why women aged 20-45 visit their GP (aside from pregnancy).

Infertility is currently estimated to affect one in six couples in the UK (about 3.5 million people) at any one point. If you add to this the number of single people and same-sex couples looking to conceive (many of whom are not infertile but seek to rely on fertility treatment to conceive) and the scale of infertility, demand for assisted conception and reliance upon fertility law increases significantly.

Reasons for infertility and demand for fertility treatment

There are many reasons associated with infertility and demand for fertility treatment, including, cancer, gynaecological problems, low sperm count, unexplained infertility, women delaying having a family until later in life (perhaps to establish a career), second time relationships, inability to find the right partner with whom to start a family, relationship breakdown, decision to become a solo parent, becoming a known donor or co-parent, gay and lesbian parenting.

Fertility treatment options and success rates continue to improve as medical technology develops. Greater awareness and social acceptance of fertility treatment, families created through assisted conception outside heterosexual marriage, celebrity endorsement and media coverage encourage increasing numbers of people to build families in this way.  Infertility, sexual orientation or single status is no longer necessarily a bar to having a much wanted family.

Fertility law and treatment

Fertility law and fertility treatment do not always sit comfortably with each other in the UK.  Despite the overhaul of fertility law in the UK in 2008 (the first in 20 years), it is still not entirely joined up with the demand for, and creation of, many modern day families through donor conception, surrogacy, co-parenting and known donor arrangements.

Whilst improvements were introduced to donor conception law in 2008, difficulties remain. Lesbian mothers now both become their child’s legal parent at birth and are named as such on their child’s birth certificate as civil partners or through nomination of the non birth mother as second legal parent using the appropriate forms at a UK licensed fertility clinic.  However, legal problems can arise for non civil partnered lesbian couples conceiving by privately arranged artificial conception at home, conferring unwanted legal parenthood and financial responsibility upon a known male donor.  As lesbian civil partners, they also automatically oust the legal parenthood status of a male co-parent (and biological father), which can upset the desired family dynamic and structure.

Solo mothers must take particular legal care if they conceive through donor conception. For some married couples, gruelling rounds of unsuccessful IVF and treatment can place untenable strain on their marriage causing it to breakdown. Faced with a ticking biological clock, the woman may then seek donor conception treatment at a licensed fertility clinic presenting as a single woman (although she is still married).  Donor conception law dictates that her husband is treated in law as the child’s father unless steps are taken to prevent this.

Single women choosing to conceive with a known donor must also beware of the legal pitfalls. If a single woman conceives by private arrangement at home, then her known donor will become her child’s legal father and become financially responsible for the child and so she will not achieve legal parental autonomy.  If she conceives through known donation at a licensed clinic, she will need to take care over the legal position if she wishes to ensure her known donor will have no legal status for her child (by filling in the requisite legal forms appropriately).  Donor agreements are also useful tools in any known donation case, providing legal clarity and helping to crystallize the expectations and agreement of the parties for the child (and which can also be useful evidence in the event of a subsequent legal dispute over the child).

The law surrounding surrogacy in the UK is also complex. The law confers legal parenthood upon the surrogate mother and her husband for the child and intended parents must apply to the court for a parental order in order to reassign legal parenthood to themselves and extinguish the legal status of the surrogate parents for their child.  Single people cannot apply for a parental order for a surrogate born child to become the child’s legal parent.  Surrogacy law was not designed to cater for international surrogacy arrangements and creates international conflicts of law which can leave children born abroad to foreign surrogates stateless and parentless with no rights to return home to the UK with their intended parents.

A significant proportion of UK society is therefore affected by infertility, fertility law and treatment.  It brings with it many challenges and anyone contemplating assisted conception should take care to tackle the legal and practical issues from the start so they are well prepared for what lies ahead.  For more information contact me by email louisa.ghevaert@michelmores.com.

Fertility Law: multiple IVF birth numbers continue to fall in the UK

Tuesday, May 24th, 2011
The latest figures released by the HFEA show that the numbers of multiple births following IVF continue to fall in the UK. Multiple births are considered to be the biggest fertility treatment risk for mothers and babies, which led to the HFEA’s introduction of a single embryo transfer policy in the UK in 2007.
The HFEA’s first multiple IVF birth target of 24% was introduced in 2009/10. This was reduced to 20% in 2010/11. As from April this year, a new target of 15% of all IVF births was set for each UK licensed fertility clinic to meet by April 2012. Between 2008 and mid 2009 the IVF multiple birth rate fell in the UK from 23.6 percent to 22 percent with an overall pregnancy rate of 31.3%.
Single embryo transfer in the UK is considered most appropriate for women aged under 37 years with good quality available embryos. IVF remains a globally important fertility treatment option, although different countries adopt different approaches to the issue of multiple births, with the HFEA’s remit only extending across the UK.
IVF can be an invaluable treatment option for those struggling to conceive, offering hope and the prospect of a much wanted family for the single woman or lesbian couple conceiving with donor sperm or a known donor, for heterosexual couples looking to conceive with their own or donor gametes, for single men and gay couples entering into a co-parenting or known donor arrangement and for those building families through surrogacy. IVF can raise complex fertility law issues, particularly for those looking to create alternative family structures, undergo surrogacy or those with complicated personal situations, making specialist legal advice a must at the outset.  For more information email me louisa.ghevaert@michelmores.com.

High Court Judge gives interview on international commercial surrogacy

Friday, May 20th, 2011

High Court Judge, Mr Justice Hedley, gave a rare interview to the BBC yesterday highlighting the legal difficutlies international surrogacy creates.  He said  he “had been extremely anxious about the difficulties people have got themselves into” entering into commercial surrogacy arrangements “without appreciating the legal implications of doing so”.

Mr Justice Hedley’s interview follows the most recent publication of an international surrogacy case by the High Court last month, where he gave retrospective approval to a commercial surrogacy arrangement entered into by a  British couple in Ukraine, and which left a surrogate born child stateless and parentless due to an international conflict of law.

Speaking generally about surrogacy law, Mr Justice Hedley said that the most important thing was “to talk through the issues” and that it was “the immigration issues which were particularly important” to stop people getting themselves “into a mess with their children”.

Whilst the law in the UK seeks to prevent commercial surrogacy, the High Court does have the power to retrospectively authorise a commercial payment to a surrogate mother.  Mr Justice Hedley said that the reason commercial payments were retrospectively authorised  “was not to encourage commerical surrogacy but because of the impossible position in which the child born as a result of the arrangement finds itself in when back in this country“. However he added, “the court is still entitled to scrutinise these payments (and does so) to ensure they are not oppressive, do not overbear the will of the surrogate and are not simply the buying of children by people not held fit to have children in this country and this could still prevent an order being made”.

The retrospective approval of any international commercial surrogacy arrangement by the English High Court remains a rigorous and involved legal exercise. The court scrutinises each case carefully on a case by case basis to ensure that the legal criteria have been met and that the nature of the surrogacy arrangement and the commercial sum paid do not amount to the clearest case of abuse of public policy.

However, this latest case once again raises questions about surrogacy law in the UK and the problems it can create.  It is not illegal for British people to enter into a commercial surrogacy arrangement abroad, although the law prevents people entering into professional arrangements on the same basis in the UK.  Mr Justice Hedley said  that “if the will of Parliament was being subverted, then it was a matter for politicians to address” and that “control has to be exercised before the child gets back in the country either by preventing people doing this overseas or by preventing people entering at the border”. He added “by the time the case comes to me the best thing I can do is focus on the welfare of the child” as the child’s welfare is the paramount consideration of the court.

This latest case graphically illustrates the very real problems international surrogacy can create.  Surrogacy law in the UK was not designed to cater for international surrogacy. It creates international conflicts of law which can leave children born stateless and parentless and stranded in a legal black hole. Surrogacy law in the UK regards the foreign surrogate and her husband as the child’s legal parents and there is no automatic recognition of foreign birth certificates and foreign parentage orders.  Intended parents can face all manner of immigration law difficulties trying to secure their child’s safe passage home to the UK.  Foreign surrogacy organisations can unknowingly provide an overly simplistic picture of the UK legal issues which can lull British people into a false sense of security and leave them unprepared for what lies ahead. Whilst surrogacy is increasingly a global reality, there is not international harmonisation of surrogacy law and all too often people don’t tackle the legal issues until late in the process, causing misery and heartache for themselves and their family. Anyone entering into an international surrogacy arrangement should prepare thoroughly and ensure they fully appreciate the legal issues before they begin.

I acted for the parents in Re: IJ (a child) 2011, the Ukrainian case referred to above. For more information contact me by email louisa.ghevaert@michelmores.com.

International Surrogacy: beware of the legal difficulties warns High Court Judge

Wednesday, May 18th, 2011

International surrogacy case Re: IJ (a child) 2011 is the latest  High Court decision to be published in the UK, awarding legal parenthood to British parents who’s surrogate born child was born stateless and parentless in the Ukraine. The child, known only as IJ, was born without any citizenship anywhere in the world due to an international conflict of law – Ukrainian law regarded the British couple as the parents whilst English law treated the Ukrainian surrogate mother and her husband as the parents.  The High Court granted legal parenthood to the British parents to safeguard IJ’s welfare even though they had entered into a binding commercial surrogacy arrangement in the Ukraine, which breached public policy restrictions designed to prevent commercial surrogacy in the UK.

The case contains a stark warning by English High Court Judge, Mr Justice Hedley, about the legal difficulties that overseas surrogacy can create.  Mr Justice Hedley highlights the very real difficulties the British couple experienced trying to obtain immigration clearance to bring IJ home to the UK, made worse by IJ’s need for hospital treatment in the Ukraine. He emphasizes the fact that the British couple “who had done their conscientious best to act lawfully and to be prepared for all contingencies, had been mislead by some unduly simplistic advice from the Ukrainian surrogacy agency”. 

Mr Justice Hedley also stresses in the judgment the critical importance of obtaining expert legal advice saying “those who travel abroad to make these arrangements really should take advice from those skilled in our domestic law to be sure as to the problems that will confront them (not least of which is immigration) and how they can be addressed.  Reliance on advice from overseas agencies is dangerous as the provisions of our domestic and immigration law are not fully understood”.

This is not the first time that British people have got into legal difficulties entering into international commercial surrogacy arrangements, leaving surrogate born children legally vulnerable and stranded abroad.  The case echos the case of Re X and Y (foreign surrogacy) 2009, where twins were born stateless and parentless in the Ukraine to a British couple who despite their best efforts had not been made aware of the complex legal issues associated with commercial international surrogacy arrangements. The High Court stepped in on that occasion too and awarded legal parenthood to the British couple to safeguard the twins and issued a warning about the associated legal difficulties which continue to require careful in-depth scrutiny by the High Court on a case by case basis.

International surrogacy arrangements are fraught with legal difficulties because there is no international harmonisation of surrogacy law.  Foreign birth certificates and foreign parentage orders in respect of surrogate born children are not automatically recognized in the UK and intended parents must usually apply to the English court for a parental order to obtain legal parenthood and legally secure their family.  As interest in surrogacy grows, with the rise of foreign surrogacy destinations including Ukraine, India and some US states, ever present media interest and celebrity endorsement by the likes of Elton John and Nicole Kidman, there has never been a greater need to understand and manage the legal issues to avoid the legal pitfalls.

I successfully acted for the parents in both Re: IJ (a child) 2011 and Re X and Y (foreign surrogacy) 2009 and to read more information visit my  international surrogacy page or contact me louisa.ghevaert@porterdodson.co.uk or telephone me 0207 222 1244 (or from outside the UK +44 207 222 1244).

International surrogacy: payments, policy and the media

Wednesday, May 11th, 2011

An article entitled “International Surrogacy: Payments, Public Policy and Media Hype” by Louisa Ghevaert and Natalie Gamble has been published by Family Law in their May 2011 edition. The article examines the landmark High Court international surrogacy case of Re L (commercial surrogacy) [2010], which attracted front page national headlines in December 2010.

The parents, represented by Louisa and Natalie, had entered into a commercial surrogacy arrangement with a surrogate mother in Illinois, California, leading to the birth of a much wanted child.  Whilst the surrogacy arrangement was entered into lawfully in Illinois, it would have been unlawful to have entered into such an arrangement on a professional basis in the UK due to the public policy ban on commercial surrogacy. The parents successfully obtained a parental order and the case marks a legal watershed that the child’s welfare is now the court’s paramount consideration except in the clearest case of abuse of public policy.

English High Court Judge, Mr Justice Hedley, published the judgment due to the policy changes in international surrogacy and to send a clear message that intended parents need expert legal help and need to tackle the immigration and re-entry requirements into the UK before they enter into an international surrogacy arrangement.

The intense media coverage of the case brought the issue of payments into the spotlight, together with problems with existing surrogacy law in the UK, sparking debate and highlighting the apparent globalisation of the surrogacy market.

For more information contact me louisa.ghevaert@michelmores.com.