A married couple from Queensland, Australia, could face criminal charges following their application to the Family Court in Sydney for parenting orders for their surrogate born children. The case is among the first to come before the courts since recent laws were passed making it illegal for a New South Wales Resident to pay a surrogate mother a commercial sum either domestically or overseas.
After years of unsuccessful IVF, the Australian couple entered into a commercial surrogacy arrangement in Thailand. Following their return home to Australia after the birth, they applied to court to secure legal parental rights for their children. The court awarded them “equal and shared responsibility for the children” but did not make any ruling about whether the couple were the babies’ legal parents. The court then ordered the Office of the Director of Public Prosecutions in Queensland to consider whether the couple should be prosecuted for entering into a commercial agreement.
It is believed that hundreds of Australians travel overseas for commercial surrogacy despite restrictive laws across Australia. The case has raised concern that intended parents will now be wary about applying to the Family Courts in Australia for a parenting order and that they will be encouraged to lie about their children’s conception and birth, leaving themselves and their children legally vulnerable and unprotected.
Surrogacy laws are complex, particularly when people cross borders to enter into a surrogacy arrangement. There is no international harmonization of surrogacy law and there are many legal pitfalls to think about making expert legal advice from the outset essential.
The latest international surrogacy case to be published by the English High Court, namely A and A v P, P and B  once again draws into focus the legal difficulties associated with surrogacy law in the UK. Critically in this case, the English court had for the first time to determine the legal position of a vulnerable surrogate baby, born abroad to an Indian surrogate mother, in circumstances where the intended father died during the legal proceedings for a parental order.
A married couple entered into a surrogacy arrangement with a clinic in India. Following the birth in April 2010, the baby boy was placed in the care of the married intended parents who then applied to the English court for a parental order to secure their legal position as parents in the UK. The couple issued their application on 8 July 2010 and the applicant father tragically died of liver cancer aged 34 years on 19 December 2010, prior to the making of an order. Subsequently granting a parental order, Mrs Justice Theis relied on the United Nations Convention of the Rights of the Child, specifically Article 8 which required the State to protect the child’s right to an identity and a legal relationship with his parents, and because no other order would have had the same transformative legal effect as a parental order.
This latest judgment does not, however, pave the way for single commissioning parents to apply for parental orders. Single people still remain prohibited from applying for a parental order under requirements of s54 of the Human Fertilisation and Embryology Act 2008.
Mrs Justice Theis also emphasised “..the legal difficulties that overseas surrogacy agreements can create, the need to take advice from those skilled in this area as to the problems that may arise, how they can be addressed and the need to consider applying for a parental order to secure the legal status of the child”.
Pink Parenting, a leading parenting magazine for the gay community has just launched and features the legal lowdown on the legalities of surrogacy, adoption and fostering in the UK in its July/August 2011 issue. Click Pink Parenting to read my full article or visit www.pink-parenting.com.
The July/August issue of Pink Parenting has parenting articles and features from around the globe, including an interview with Ricky Martin and what having a family means to him and parents’ favourite Annabel Karmel on how she became the UK’s leading baby and toddler nutrition expert. It also features the story of Roger and Steven Ham and their remarkable journey to parenthood through adoption.
BioNews have this week published my comment piece entitled “IVF, donor conception and surrogacy: Is progressive global regulation possible?”
Assisted reproduction in the form of IVF, donor conception and surrogacy is challenging global attitudes towards medical science and is presenting a unique global regulatory challenge.
IVF policy and practice differs across the world. For example, the UK has opted for a closely regulated legislative framework overseen by the Human Fertilisation and Embryology Authority (HFEA). In contrast, in the USA greater emphasis is placed on the fertility sector’s ability to self-regulate.
Surrogacy creates legal and practical difficulties on an international scale due to conflicting laws and practice. There have been a series of internationally publicised surrogacy cases in recent years where intended parents and their surrogate born children have found themselves embroiled in serious legal difficulties, with babies stranded abroad and their intended parents risking criminal sanction.
Underpinning assisted reproductive technology, including IVF, donor conception and surrogacy are some very fundamental issues about the right to have a child and a family life, the interests of children conceived using assisted conception techniques, and the structure of modern day families. Sesitive and difficult issues may also arise surrounding altruism, commercialism and freedom of choice. Assisted reproduction techniques now enable children to be conceived and families to be created in a number of different ways that were simply not possible 40 years ago. Fertility treatment and practice now has a global reach which has out-paced legislation and regulation.
Until we begin to get to grips with these issues in their widest sense, it is difficult to see how any form of progressive international consensus or regulation will be reached in relation to assisted reproduction. In the meantime, IVF, donor conception and surrogacy remain key topics for debate, policy formulation and regulation amongst nations across the globe.
Louisa Ghevaert joined Matt Faulkener’s BBC Radio Somerset Breakfast Show to debate the problems associated with accessing free IVF fertility treatment on the NHS.
All three local PCT’s in Somerset are ignoring government guidelines on how many cycles of IVF should be offered to couples free on the NHS, a picture which is mirrored across the country. The National Institute for Health and Clinical Excellence (NICE) says that PCT’s should offer infertile couples three attempts free on the NHS. Local PCT’s in Somerset are only offering one or two free cycles of IVF on the NHS, whilst nationally 73% of PCT’s offer less than three cycles and 39% of PCT’s only offer one free cycle of IVF.
The Prime Minister recently joined the chair of the All Party Parliamentary Group on Infertility (APPG), Gareth Johnson MP, in calling for all Primary Care Trusts (PCT’s) to follow the NICE Guidelines and offer fertility patients three cycles of free IVF treatment on the NHS. The APPG report uncovered that there are wide variations across the country. For example in North Somerset PCT, infertile couples where the woman is aged 23-39 are eligible for one free IVF cycle on the NHS, whilst in Dorset infertile couples are eligible for two cycles but only if the woman is aged 30-35, whilst in Hampshire infertile couples are only eligible for one cycle if the woman is aged 30-34. Five PCT’s were highlighted in the APPG report as not offering treatment at all, including North Yorkshire, North Staffordshire and West Sussex.
Private fertility treatment typically costs £4,000 – £8,000 per cycle in the UK depending upon the specific treatment involved. The IVF postcode lottery and differing IVF funding policies from PCT to PCT can cause immeasurable pain and heartache for fertility patients when faced with the stark reality that they will not be offered the recommended three free IVF cycles on the NHS or worse still none at all.
If you are experiencing problems accessing free IVF fertility treatment through your local PCT, contact The Infertility Network UK for free help and support.