Resolution, the professional body for family lawyers in England, has just published a guide with which I collaborated entitled “The Modern Family (A Resolution Guide). I’m delighted to say it includes a chapter on assisted conception law, donor conception and surrogacy.
The guide deals with modern day families created through step-parenting, adoption, assisted conception, surrogacy, same-sex parenting and grandparenting. Its aim is not only to deal with the legal issues when families breakdown but to also strengthen modern families and family networks. The guide acknowledges the fast moving issues created by family fragmentation, reform, movement abroad and creation through assisted reproductive technology and provides a concise overview of the main issues and difficulties involved.
There are number of factors that motivate the practice of surrogacy around the world, including altruism, infertility, commercialism and in some cases grief. Different jurisdictions take different approaches to surrogacy law and practice in what remains an evolving area fraught with many difficulties and challenges.
Sometimes, people are motivated to turn to surrogacy through tragedy as in the recently publicised Indian case of KP Ravikumar and his wife Karthyayani. Their only son died unexpectedly of testicular cancer in January 2011, leaving behind a semen sample in case his cancer treatment left him infertile. Ravikumar and his wife recently won a court order for the release of their son’s semen which they plan to use to conceive a child through surrogacy. Their case has made headlines and brought surrogacy once again into the media spotlight.
Ravikumar, aged 59, and his wife Karthayani, aged 58, first wanted to adopt a child following the death of their son but found they were disqualified by their combined age. Motivated by their grief and sense of loss, they turned to surrogacy. They found a relative of Ravikumar who was willing to become a surrogate mother for them and they planned to sell some of their land to raise enough money to cover the costs of the surrogacy arrangement. However, their surrogate subsequently backed out following intense media publicity.
Much of the publicity surrounding this case focused on the ages of Ravikumar and his wife and their desire to have their dead son’s child. India has no formal surrogacy laws as the Assisted Reproductive Technology (ART) Regulation Bill 2010 has not yet been approved. As a result, there is no formal age bar or other legal restrictions preventing them from entering into a surrogacy arrangement.
Whilst the story is compelling in its grief and tragedy, it raises a number of complex legal issues associated with ownership of their son’s semen, parenting in later life, the best interests of the surrogate born child and the regulation of surrogacy law and practice. The lack of legal uniformity of surrogacy around the world, combined with growing demand for surrogacy and assisted conception creates a number of challenges for law and policy makers. This case aptly demonstrates the overwhelming desire that can motivate some to become parents through surrogacy when all else has failed and the complex issues it can create. Assisted reproductive technology is here to stay and this makes family building possible in ways that simply was not a reality twenty or thirty years ago.
The Irish Minister for Justice, Equality and Defence has recently issued guidelines for Irish intended parents who enter into surrogacy arrangements abroad. Whilst any attempt to streamline the complex legal issues and problems associated with international surrogacy is to be welcomed, these guidelines are a far cry from a much needed root and branch overhaul of the fundamental legal treatment of international surrogacy arrangements in Ireland and the introduction of formal surrogacy legislation.
The new guidelines coincide with recent media coverage of an increasing number of foreign born surrogate babies left stranded abroad in circumstances where their Irish intended parents have no clear means of securing their safe passage home to Ireland after the birth. Whilst the guidelines do create a clearer pathway for Irish citizenship or emergency travel clearance to be granted to the surrogate born child if the intended father is an Irish citizen and biological father, this can still take many weeks or months to secure in circumstances where a DNA test and a raft of other paperwork and/or an Irish court order is also required.
The Irish surrogacy guidelines make no change to the legal position of the Irish intended mother who lacks legal status for the surrogate born child at birth. Irish law continues to regard the surrogate mother as the child’s legal mother by virtue of carrying the pregnancy and if married her husband as legal father (a position which is mirrored under English law).
Overall, the Irish surrogacy guidelines signify a need for greater legal certainty of the complex legal issues that surrogacy and assisted reproduction create. The guidelines mark a step forward but fall short of radical reform. The lack of a uniform approach to surrogacy law and practice around the world continues to create complex international conflicts of law and very real difficulties for intended parents and their surrogate born children alike. There needs to be rational international debate and consensus at its widest level about the nature and practice of surrogacy, payments, issues of enforceability and the associated international movement of children.
UK surrogate mother, Jill Hawkins, is pregnant again for a ninth time. Jill, a legal secretary from Brighton aged 47, is due to give birth to her ninth and tenth surrogate babies three weeks before her 48th birthday. Jill spoke of her pride of being a surrogate mother and how fulfilled she felt during pregnancy during a recent press interview.
Jill’s first seven surrogate babies are reported to have been conceived through artificial insemination using her own eggs and the intended father’s sperm. This time round, Jill conceived twins through IVF using the intended parents’ own embryos.
Jill is the most prolific surrogate mother in the UK, following Carole Horlock’s move to France after giving birth to twelve surrogate babies. Jill and I were interviewed about surrogacy law and practice on BBC Breakfast last year (January 2011).
Surrogacy is a restricted legal practice in the UK. There is a public policy restriction against commercial surrogacy and surrogacy contacts are not binding in law. The surrogate mother is treated in law as the child’s legal mother at birth (regardless of biology) and intended parents need to apply to court for a parental order to extinguish the legal status of their surrogate mother and obtain full legal parental status for their child.
Theresa Erickson, a former prominent Californian surrogacy lawyer, was last Friday sentenced to five months in prison, nine months home confinement, three years of supervised release and a $70,000 dollar fine plus restitution for her role as ring leader of what prosecutors termed an illegal international baby-selling ring. Her sentence follows the prison sentence that was delivered to her co-conspirator and Maryland lawyer, Hilary Neiman, last December. Carla Chambers, the third co-conspirator, also received five months in prison for her role and guilty plea to knowingly receiving money from an illegal enterprise.
The legacy of this case will create longstanding issues for the intended parents, surrogates and children involved. A point noted by the federal judge who stated that Erickson and her co-conspirators had tainted the birth stories of the children involved. Erickson acknowledged her wrongdoing in court and said she had lost her way.
The six year scam, which involved at least 12 fake surrogacy arrangements, stands as a stark reminder of what can happen when surrogacy and assisted reproduction goes wrong. US prosecutors delivered a statement in court stating that Erickson had been motivated by greed and that she had preyed upon people’s most basic need to have and raise a child, charging childless couples $100,000 or more to become intended parents and step into falsified ‘surrogacy arrangements’ where surrogates were already pregnant using donor embryo treatment in the Ukraine.
Assisted reproduction and surrogacy can offer hope to many people who are unable to have a child of their own. Surrogacy can deliver the reality of a much wanted child and family after years of personal heartbreak and upset. The actions of these individuals have, however, left their mark and raised questions about the control and regulation of assisted reproduction across the world and the role of the professionals involved. International surrogacy arrangements raise a number of complex legal and practical issues for intended parents and surrogates to get to grips with, in what remains an expanding and fast moving area of law and practice. This case shows that assisted reproduction and surrogacy is not without its risks and that great care is needed at all stages of the process.
Later this week, San Diego surrogacy attorney Theresa Erickson will be sentenced for her part in what US prosecutors have called an international baby-selling ring. It is likely she will face a prison sentence, following her guilty plea to a wire fraud charge last August.
Ms Erickson was charged along with two others, a Maryland lawyer called Hilary Neiman and Carla Chambers, a nurse from Las Vegas. Ms Neiman was sentenced last December to one year in prison, being five months in custody and the rest under home confinement, for her part in the scheme.
The women recruited surrogates and sent them to the Ukraine where they conceived and then sourced intended parents for the unborn babies once the pregnancies were well established. Prosecutors alleged that the intended parents were falsely told that a previous surrogacy arrangement had fallen through and that they could step in for an alleged fee of $100,000 or more. It is further alleged that falsified court documents were then filed in the Californian court presenting the case as a surrogacy arrangement to obtain pre-birth orders for the intended parents. It is reported that the scheme involved at least 11 babies.
Ms Erickson was a successful and high profile US attorney who specialised in surrogacy law and who also owned a surrogacy and egg donation agency to help people become parents through surrogacy. She was herself an egg donor (resulting in the birth of twins) and a prominent commentator about surrogacy on television and radio. Her involvement in this scandal has sent shock waves through the assisted reproduction community and caused many to question her motivations and actions.
Under Californian law, intended parents must enter into a surrogacy contract with a surrogate before conception. The timing is critical. It is illegal for a woman who is already pregnant to agree to handover a baby to the intended intended parents for a fee and this is regarded as baby-selling.
The San Diego Superior Court has now tightened up its legal process and requirements to try and prevent any further cases of this nature. Whilst the vast majority of surrogacy arrangements are successful and follow due legal process, this scandal has attracted unwelcome headlines and coverage. It highlights the problems and pitfalls that can occur in an area of law and practice that lacks widespread unification or regulation. It also brings into focus the importance for intended parents to get a clear grasp of the legal issues from the outset and ensure that they have confidence in their lawyer and the other professionals with whom they work.
For those considering entering into an international surrogacy arrangement, it is important to tackle the legalities in their surrogacy destination country as well as their home country upon their return with their baby. As there is no international harmonization of surrogacy law, a Californian pre-birth order will not be automatically recognised in the UK and English law expects intended parents to apply to court for a parental order to secure legal parental rights for their child. International surrogacy arrangements raise a number of complex legal issues involving public policy and international legal conflicts of law which make any application for a parental order a significant legal exercise. This process can become even more complicated if any legal discrepencies or problems come to light along the way, such as the those highlighted in the alleged baby-selling ring.
Interest in surrogacy continues to grow around the world. Surrogacy is becoming more common as a family building option, whether on an altruistic, commercial, host or straight basis.
For some heterosexual couples, surrogacy is an attractive option when IVF treatment has failed and when faced with the often daunting, lengthy and uncertain adoption process.
Surrogacy can also deliver the prospect of a genetically related child, which can be a powerful incentive for many people struggling to conceive naturally and for same-sex couples.
For gay male couples looking to start a family, surrogacy can offer parental autonomy as opposed to entering a co-parenting or known donor arrangement which can involve three or more adults.
Celebrities continue to endorse surrogacy, capturing public interest and raising the profile of surrogacy around the globe.
More jurisdictions than ever before are opening their doors to surrogacy, providing an increasing choice of surrogacy destination for intended parents. Some foreign jurisdictions endorse surrogacy on a commercial basis and offer binding surrogacy contracts and a pool of prospective surrogates and donors, which can seem an attractive option for some intended parents when faced with legal restrictions limiting the practice of surrogacy in their home country.
However, surrogacy law and practice remains an evolving area. There is no international unification of laws surrounding surrogacy and this can create a range of legal problems for intended parents looking to cross-borders and enter into international surrogacy arrangements to create a much wanted family.
Robert DeNiro and his wife Grace Hightower are the latest celebrity couple to have a baby through surrogacy. They recently announced the birth of their baby daughter, Helen Grace. Baby Helen is the couple’s second child, being a younger sister for their son Elliot aged 13. Robert DeNiro has further children with his former wife and girlfriend, two of whom are reported to have been born with the help of a surrogate mother.
They follow in the footsteps of other celebrity couples including Nicole Kidman and Keith Urban, Elton John and David Furnish and Sarah Jessica Parker and Matthew Broderick. Whilst the cost of surrogacy in the US, where these celebrities are understood to have entered into their surrogacy arrangements, is far from cheap and can cost tens of thousands of dollars, celebrities are increasingly embracing surrogacy as a way of having or expanding their family and raising the profile of surrogacy across the world. Surrogacy is increasingly being viewed as a flexible family building option, particularly for those couples unable to carry their own pregnancy and same-sex couples and is often combined with the use of donor eggs or sperm and IVF.
The English family court has now endorsed a small number of international surrogacy arrangements involving British couples who have entered into surrogacy arrangements with foreign surrogates abroad. However, any cross-border surrogacy arrangement raises a number of complex issues, reflecting the international dimension, the commercial nature of the agreement which offends domestic public policy designed to prevent commercial surrogacy in the UK, the often complicated immigration, citizenship and nationality considerations and the need to protect the best interests of the surrogate born child or children, the surrogate parents and the intended parents. The English family court continues to highlight the need for prospective surrogate parents to take great care over the relevant legal issues and ensure they obtain expert legal help and assistance so they can navigate a safe path home to the UK with their surrogate born baby after the birth and legally protect their family and parental rights in the UK.
A married couple from Portsmouth have won a rare IVF funding victory against their local PCT following a hard-fought legal battle. The couple have tried unsuccessfully for a baby for over three years and, despite numerous appeals, were refused funding for IVF treatment on the NHS by Portsmouth City PCT, under the umbrella of South Central, due to the husband’s child from his previous marriage. Following an unsuccessful appeal through their GP, they contacted their local MP, Ms Penny Mordaunt for help, who put the couple in touch with me as a leading expert in fertility law.
Whilst this victory is very welcome, it still leaves many people facing uphill funding battles with their PCTs, which is why I have written to the Secretary of State for Health on this matter.
There needs to be routine implementation of the NICE guidance across the board. There also needs to be greater recognition and understanding of infertility, which blights too many people’s lives and better support for people struggling to have a family and those needing to undergo IVF.
It is unfair to deny a childless woman access to IVF on the NHS if her partner has a child from a previous relationship. This actively discriminates against women and denies them the opportunity to bear their own children and become mothers.
By introducing such stringent age restrictions, it denies younger women access to treatment who have three years of proven infertility when they will have a better chance of conceiving at a younger age. Equally it restricts access to treatment by women who do not actively try for a baby until later in life and who struggle to achieve three years of proven infertility.
Infertility affects one in seven couples in the UK (approx 3.5 million people). The current IVF postcode lottery, coupled with conflicting IVF funding policies between PCTs causes immeasurable heartache and distress for people when faced with the stark reality that they will not be offered the recommended number of free IVF cycles on the NHS or worse none at all. Private fertility treatment can cost thousands of pounds which is too often beyond the reach of the average couple, particularly in the current economic climate.
The latest figures released by the Human Fertilisation and Embryology Authority (HFEA) show a six percent increase in the number of fertility treatments undergone in the UK last year.
According to the HFEA’s annual report, approximately 45,200 women underwent fertility treatment in the UK in 2010, up from approximately 42,500 in 2009. The HFEA’s report also indicates that the number of fertility treatment cycles using donor eggs and donor sperm increased. The majority of women who underwent IVF treatment in the UK in 2010 were aged 37 years or under. The average age of women undergoing IVF was 35.