Surrogacy: what motivates its practice?

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.

UK surrogate pregnant for a ninth time with twins

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.

Surrogacy lawyer sentenced to prison for international baby-selling

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.

Surrogacy: is it on the increase?

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.

Fertility treatment is on the rise in the UK

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.

Fertility treatment, IVF, PGD and the creation of healthy embryos

I was delighted to attend Progress Educational Trust’s 2011 annual conference entitled “The best possible start in life: the robust and responsive embryo on Wednesday 23 November 2011.  The conference featured a series of leading lectures looking at assisted conception and the ways in which the circumstances of the embryo’s early development influence not only the likelihood of successful pregnancy and birth, but also the subsequent development and health of the child and adult in later life.

The demand for IVF continues to grow despite the relatively low success rates associated with IVF treatment.  The conference investigated the reasons for the relatively low success rates and addressed what needs to be done to improve these and create healthy embryos and babies. In addition to refining medical techniques associated with fertility treatment, discussion focused on the need for greater understanding and education about the risks associated with fertility treatment, multiple pregnancies and low birth weight babies.  There were calls for further investment and research into the longer term health of those conceived through assisted reproductive techniques and a more collective approach to family building across the world.

It was also predicted that pre-implantation genetic diagnosis (PGD) will rapidly become a significant feature of fertility treatment in future, as screening costs become more affordable and increasing numbers of medical conditions can now be identified using this technique.

American Bar Association hosts international fertility and surrogacy law congress in Las Vegas

I was delighted to be an invited guest speaker and moderator at The American Bar Association’s international assisted reproduction law congress in Las Vegas from 26-29 October 2011.  The conference brought together the world’s most pre-eminent experts in fertility and surrogacy law to discuss assisted conception, family building practices and law and policy across the world.

As increasing numbers of intended parents are crossing borders to access assisted reproductive technology and surrogacy programmes to build their families, there has never been a greater need for recognition and understanding of the legal issues and problems they  face.  The conference united  the world’s leading experts in fertility and surrogacy law and will help to give a much needed voice at a time when the Hague Conference on Private International Children Law has identified surrogacy as a “pressing socio-legal problem” and is investigating ways of regulating surrogacy internationally.

I was delighted to moderate an international panel of fertility law experts from the Ukraine, Greece and Brazil and for my own part give an international perspective of assisted reproductive technology law and practice.  My presentation addressed the scale of infertility, the reasons why intended parents cross borders for assisted reproductive treatment and popular foreign destinations, wider issues associated with cross-border assisted reproductive treatment, the risks and problems for intended parents travelling abroad for surrogacy and the nebulous question of whether there should be greater regulation of surrogacy law and practice.

It is estimated that one in seven couples experience problems conceiving. Intended parents cross borders to access fertility treatment and surrogacy programmes for a number of different reasons including cost, availability and cost of donor gametes and permissive legislation abroad. This raises a number of legal, practical and wider issues associated with management of donor information globally, whether there should be an internationally unified donor cap limiting the numbers of families to which a donor can donate, the wider emotional issues associated with assisted conception, management of health care costs, surrogacy law and practice, as well as citizenship and nationality and immigration law issues and protocols.

There is no international harmonization of surrogacy law, with some jurisdictions prohibiting it, others allowing it on a restricted non commercial footing and some embracing surrogacy on a commercial basis.  Surrogacy raises sensitive and difficult issues about the right to have a child and a family life, altruism, commercialism and freedom of choice. Assisted reproduction techniques now make it possible for children to be conceived and families to be created in ways that simply were not possible forty years ago.  Fertility treatment and surrogacy now has a global reach which has out-paced legislation and regulation. Until nations get to grips with these issues it is difficult to see how any form of progressive international consensus or regulation will be achieved in relation to assisted reproduction. The risk is that in the meantime international regulation of surrogacy will be introduced akin to adoption, which could limit the practice of surrogacy around the world.

Assisted reproduction lawyers play a vital role in educating intended parents about the legal issues and pitfalls when they cross borders for fertility treatment and surrogacy.  The American Bar Association is to be congratulated in hosting this international conference and creating a united voice of the world’s leading fertility and surrogacy law experts .  As a group we must continue to engage with law and policy makers across the world as they struggle to get to grips with the increasing demand for assisted reproduction and the implications and regulation issues this creates.

Donor conception law and policy: ‘octomom’ doctor’s licence to be revoked

The Medical Board of California ruled that the fertility doctor who transferred 12 embryos into Nadya Denise Doud-Suleman (who gave birth to octuplets in California in January 2009 earning her the nickname ‘octomum’) should have his medical licence revoked from 1 July 2011.
The US fertility doctor transferred six times the recommended number of embryos for a woman of Ms Suleman’s age, putting her and the babies at risk of serious medical complications and death. The Medical Board of California said that the step was necessary to protect the public and that probation and monitoring would not be sufficient. The panel held that the fertility doctor “did not exercise sound judgment” and rejected arguments that the publicity surrounding the case would deter him from transferring excessive numbers of embryos to others in future saying “the board is not persuaded that relying on the public or the media to fulfil or supplement the board’s public protection role is a sound policy”.
The ‘octomum’ case attracted international headlines and sent shock waves through the US assisted reproduction community, causing concern that best practice and confidence in assisted reproductive technologies in the US had been undermined and called into question. Ms Suleman underwent IVF treatment, using her own eggs and donor sperm, and gave birth to six boys and two girls by Caesarean section. The babies are only the second full set of octuplets to be born alive in the US, having survived more than a week.
Unlike in the US, strict UK wide fertility laws and regulation by the government watchdog, the HFEA, rigorously oversee and monitor UK licensed fertility clinics and fertility treatment and prevent such high order of multiple birth (being three or more offspring in one birth). The HFEA’s introduction of the single embryo transfer policy in 2007 has also done much to reduce the multiple birth rate figure in the UK, which is considered to be the greatest fertility treatment risk for expectant mothers and their babies.

Welcome to Louisa Ghevaert’s website

I am internationally recognised as a leading expert in UK fertility, family and parenting law with expertise covering international surrogacy and UK surrogacy, donor conception, co-parenting, embryo storage and testing, posthumous conception, children and parenting, gay and lesbian parenting, divorce and finances, cohabitation and international family law.

I am a prominent commentator on fertility law issues on television, radio and in the national press.  My pioneering practice of fertility and parenting law derived from my own personal achievement of a hard won family.  I have also dealt with some of the most significant fertility law cases in the UK representing parents:

In Re L (a minor) in the High Court in October 2010,  marking a legal watershed ruling that the welfare of the child is decisive over the government public policy ban on commerical surrogacy except in the clearest cases of abuse of public policy.

In Re X & Y in the High Court in November 2008, being  the first case in UK legal history to test the law for British parents conceiving through an international commercial surrogacy arrangement and which involved complex and groundbreaking legal issues.

Melanie and Robert Gladwin, helping them to save their frozen embryos from destruction and winning a high profile last minute change to the law in relation to embryo storage in September 2009.  I was featured asThe Times’ Lawyer of The Week 1 October 2009) and Law Society Gazette Lawyer in the News (17 September 2009) as a result.

I provide expert fertility and parenting law commentary on television, radio and in the national press.  I have provided advice to the BBC and written articles for BioNews, national magazines as well as leading legal journals including Family Law, International Family Law, Family Law Journal and The Review.

I am an accomplished public speaker and I regularly speak at national fertility sector events.

I have over a decade of family, fertility and parenting law experience. I have been a member of Resolution (the professional association of family lawyers) since 2003, an accredited member of the law Society Family Panel since 2005 and trained as a collaborative lawyer. I have particular expertise in complex private family and children law and heavy weight litigation often with an international element including surrogacy arrangements, acquisition of legal status and parental rights for birth and non birth parents and other significant adults, as well as issues surrounding contact, care and upbringing of a child and parental responsibility.

I was a member of the stakeholders’ Parliamentary strategy group concerned with the Human Fertilisation and Embryology Act 2008 and its associated regulations, and lobbied for legal changes on a diverse range of issues, including surrogacy and embryo storage. I submitted written evidence as an expert adviser to the HFEA’s Ethics and Law Advisory Committee, and provided detailed legal comment to the Department of Health’s 2009 consultation on proposed draft surrogacy regulations, which won changes to the law on nationality in international surrogacy situations.

I provide regular help and assistance to charities and not-for-profit organisations.

I qualified as a solicitor in 2000.