The intersection of fertility and family law

I was delighted to attend Family Law’s annual drinks party in central London last night following my specialist contribution to The International Family Law Practice Second Edition (March 2012).  The evening was very well attended by judges, barristers, lawyers, specialist experts and members of Jordans Publishing group who came together to celebrate the launch of a number of new publications in the arena of family, children and parenting and fertility law.

For the first time, The International Family Law Practice includes a specialist chapter on surrogacy law which I co-authored with David Hodson, partner at The International Family Law Group and a deputy district judge.  This leading practitioner textbook known as ‘the Grey Book’ in legal circles provides comprehensive coverage of the complex and rapidly developing area of international family law and its intersection with assisted reproduction law in the form of international surrogacy.

International surrogacy in India: an unregulated market

The unregulated Indian surrogacy market could be worth as much as £1.5 billion a year and growing, according to Indian authorities.  It is believed there are up to 1,000 Indian clinics offering surrogacy and fertility treatment services to international intended parents through a combination of IVF, egg donation and surrogacy.

Demand for surrogacy in India continues to rise, with increasing numbers of British people travelling to India to have a much wanted baby in light of the legal restrictions and perceived uncertainty associated with the process in the UK.  British intended parents willing to travel to India for surrogacy come from all walks of life and include both  heterosexual and same-sex couples.  Many have turned to surrogacy having become concerned about the difficult and complex procedure to adopt and foster in the UK.

The Indian government has carried out a study looking at ways to introduce legislation to regulate surrogacy in India.  Proposals have been drawn up to introduce safety standards, prohibit sex selection, prevent women able to carry their own pregnancy from undertaking surrogacy and establish a register of clinics with a regulatory body to supervise and enforce standards. The  proposals would also require intended parents to be able to confer their own citizenship upon their surrogate born baby automatically at birth in an attempt to prevent further cases of babies being born stateless and parentless due to an international conflict of law. However, legislation remains in draft and it could take many years before it becomes law.

For those experiencing infertility or same-sex couples, surrogacy can deliver hope and a much wanted child.  However, international surrogacy is fraught with complex legal issues and potential pitfalls.  There is a public policy ban against commercial surrogacy in the UK and egg donors can only be paid £750 for expenses and this causes an international conflict of law when British intended parents enter into a commercial surrogacy arrangement and conceive with the help of a commercial egg donor in India.  Law in the UK does not automatically recognise an Indian birth certificate naming intended parents as their surrogate born baby’s parents and they currently need to undertake a complex parental order application in the English court to secure parental rights in the UK.  Intended parents must also have a viable immigration action plan to ensure they can obtain the right travel papers and clearance to get their baby home safely to the UK after the birth.  In the absence of this, they risk their baby being left marooned abroad and facing a difficult and complex legal battle with the British Home Office.

NICE issues new IVF and fertility guidance

The National Institute for Health and Clinical Excellence (NICE) has today issued new draft guidance concerning the provision of fertility treatment and IVF on the NHS.  The new proposals recommend that the age limit for women undergoing IVF treatment on the NHS should be increased from 39 to 42 years.  The proposals also recommend for the first time that same-sex couples should qualify for fertility treatment if they have undergone six cycles of artificial insemination at a private fertility clinic. Furthermore, the proposals recommend that women should be offered fertility treatment on the NHS after two rather than three years of unsuccessful trying for a baby.

NICE guidance on the provision of IVF treatment on the NHS hasn’t been updated since 2004. It is high time this is achieved to reflect better treatment success rates, equality legislation and greater demand for IVF by women aged 35 upwards.  However, NICE guidance is not mandatory and it remains to be seen whether these new proposals will bring about greater recognition of IVF as a legitimate clinical need or greater fairness in terms of access to fertility treatment on the NHS across the country.  In the meantime, fertility patients continue to battle with the reality of the postcode lottery and varying restrictions imposed by PCT’s who continue to flout the guidance.

Infertility affects one in six couples across the UK from all  walks of life.  The IVF postcode lottery causes great distress for people when faced with the reality that they will not be offered the recommended number of free IVF cycles on the NHS or worse none at all. This can lead to relationship breakdown and depression which can blight people’s lives and cause long term misery and hardship. Private fertility treatment can cost thousands of pounds which is too often beyond the reach of couples, particularly in the current economic climate.  With an increasingly ageing population, we need to do all we can to increase the birth rate in the UK to mitigate the increasing economic burden placed upon younger generations of society.

Owner of US surrogacy agency prosecuted

The owner of a US surrogacy agency in Modesto pleaded not guilty on Monday to criminal charges of fraud and money laundering.  Prosecutors allege she stole more than $2 million from clients who had paid money into trust for surrogacy fees and egg donation.

US authorities allege that the owner of SurroGenesis, Tonya Collins, encouraged clients to invest their money with a personal property escrow company which purported to be independent and that she concealed her ownership of the company and created fictitious staff identities to make it appear independent.  Prosecutors allege that she then transferred client money to personal accounts to pay for a lavish lifestyle including holidays, homes and cars.

Judge Gary Austin is reported to have indicated that if found guilty, Ms Collins could face up to 20 years in prison and a $250,000 fine for mail fraud and wire fraud, up to 30 years in prison and a $1 million fine for bank fraud and 10 years in prison and a $250,000 fine for money laundering.

There are no centralized laws governing the practice of surrogacy in the US and this case follows on from the recent prosecution of an international baby-selling ring headed by a prominent former US surrogacy attorney. There is also no international harmonization of surrogacy law around the world, with each jurisdiction taking its own approach to surrogacy and this can create a legal quagmire for intended parents. Whilst such cases are unusual, it highlights the risks associated with assisted conception and brings into focus once again the importance for intended parents to vet the professionals they choose to work with and ensure they have a clear understanding of the legal framework and issues relevant to their family building plans.

Surrogacy and the celebrity factor

Leading fertility magazine Fertility Road (April/May 2012) features an article of mine entitled “Surrogacy and the celebrity factor”.

Celebrity endorsement of surrogacy continues to capture public imagination and celebrity interest in surrogacy shows no sign of abating.  Hollywood movie actress Elizabeth Banks has recently spoken poignantly and compellingly about her reasons for turning to surrogacy and the birth of her son.

Surrogacy and donor conception: the question of parenthood

Advances in fertility treatment have outstripped the law and this increasingly challenges traditional concepts of parenthood.  For those who have struggled for years with infertility or never thought they could have a child, they can now conceive using a sperm donor, an egg donor, a surrogate (or a combination of these).  This creates a key question: who is a parent?

Traditionally, parenthood followed biology.  The woman who gave birth to the child was legal mother and her husband was the presumed legal father.  However, it is now a far more complex question in assisted conception cases.  As growing numbers of people embrace fertility treatment, cross borders, engage foreign surrogacy organizations and conceive with donor eggs and sperm the concept of parenthood can seem confusing and unclear. This challenges existing law and policy and has resulted in a a legal jigsaw puzzle that many struggle to make sense of.

Assisted reproduction and modern family structures challenge traditional notions of family.  Increasing numbers of people are creating families through surrogacy, using a known donor who may have ongoing involvement with the family, through co-parenting arrangements or embracing family life as a solo parent.  This raises questions about the legal status and role of the individuals involved and whether parenthood should be based on biology, intent, pregnancy and birth or social parenting.

The structures of modern families are changing and assisted reproductive technology is developing at a fast pace.  The law has not kept pace with these developments and there needs to be greater understanding of the different pieces of the jigsaw that make up family building through assisted conception, sperm and egg donation and surrogacy.  Only then, can we effectively tackle the question of parenthood and put effective law and policy in place.

If you would like to discuss your personal situation in more detail or you would like more information please email me lghevaert@vardags.com.

The impact of infertility

Infertility fears are increasingly common as more and more people think about their fertility and worry about starting a family. Infertility is a difficult issue and a diagnosis of infertility can affect you deeply.

Whilst some will take a proactive approach following a diagnosis of infertility, others will struggle to come to terms with this.  Recent research shows that involuntary infertility has a big impact on self-esteem and emotional well-being in both men and women. Our sense of identity, our masculinity and femininity are linked to our fertility.  People can find it difficult to discuss the problems they might have (or fear they might have) and it can put strain on relationships and affect performance at work.

For those people whose fertility levels do not improve through lifestyle changes, it may mean they will need to turn to assisted conception.  Assisted conception can take many different forms, including IVF, ICSI, egg and sperm donation and surrogacy.  The range of choice can seem overwhelming and it can be difficult to know where to start, or perhaps to reassess the situation if fertility treatment is unsuccessful.

If you are planning a family through fertility treatment or surrogacy it is equally important to get to grips with the legal issues so that you can ensure you properly protect your parental status and you can legally secure your family unit.  Assisted conception, complex personal circumstances, an international dimension, donor conception, solo-parents, co-parents, same-sex parenting and known donation can all raise complex legal issues.

The Modern Family (A Resolution Guide) features a chapter on assisted reproduction and surrogacy

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.

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.

International surrogacy guidelines in Ireland: improvement or just a headline?

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.