Surrogacy, relationship breakdown and modern families

AB v CD, EF, GH & IJ [2018] EWHC 1590 (Fam) is a first-of-its-kind case, in which I acted for the intended mother of  twins born in India in 2010. The Court had to grapple with legal status and identity of  parents and children when families created through surrogacy encounter serious domestic violence, relationship breakdown, divorce and restructure by remarriage in the absence of parental orders.

AB  v CD, EF, GH & IJ [2018] highlights how the needs of modern families founded through assisted conception and surrogacy outstrip existing law in the UK. Ultimately in this case, the Court was unable to fully resolve the legal status of the twins, their biological parents, the Indian surrogate and her husband or the children’s stepfather.

Instead, the Court had to make practical arrangements to secure the day-to-day upbringing of the children in the care of their biological mother and their stepfather; arrangements shaped by the special needs of one of the children and serious findings of domestic violence against their biological father.  The Court made the children wards of court and made child arrangements orders in favour of the biological mother and stepfather.  It also made no order for contact between the children and their biological father, dismissed his application for parental responsibility and restricted the exercise of parental responsibility by the surrogate and her husband.

In doing so, the Court recognized that those arrangements ‘fall very short of the transformative effect of a parental order’.

You can read more about the case here – http://www.familylawweek.co.uk/site.aspx?i=ed190618.

Louisa Ghevaert features in The Lawyer Hot 100 2018 Career Quiz

I’m delighted to feature in The Lawyer Hot 100 Career Quiz 2018 for my cutting-edge fertility and family law practice. To read the full interview click here.

The Lawyer Hot 100 “celebrates the UK’s top lawyers: the ones acting on the most significant matters, disrupting the industry with their creative flair. It tracks exceptional individuals from private practice, in-house and the Bar”.

Now in its 17th year, The Laywer Hot 100 continues to showcase legal innovation, expertise and achievements in the field of law. Fertility and family law is rapidly evolving in the UK. It creates complex legal and wider issues and is often out-paced by the needs and expectations of people building modern families using assisted conception. People’s personal and family lives are incredibly varied and this area of work requires not only  extensive knowledge of the law but also understanding of individuals’ and their many motivations, pressures and experiences.

To read more about The Lawyer Hot 100 read my previous blog piece.

 

 

 

 

 

Louisa Ghevaert Honoured in The Lawyer Hot 100 List 2018

I am delighted to be included in The Lawyer’s Hot 100 List 2018 for my groundbreaking work in the field of fertility and family law.

The Lawyer states its Hot 100 2018 List ‘is not simply about who has done the most or the biggest deals…. It recognises management figures leading their firm with vision, team leaders who have sparked incredible growth … litigators on groundbreaking cases”. Individuals included in The Lawyer Hot 100 List ‘must have star quality’. Each year, The Lawyer receives many hundreds of nominations and it ‘gathers together the best lawyers in the UK – the most daring, innovative and creative’.

It is a privilege to receive this accolade and feature in The Lawyer’s Hot 100 List 2018 in recognition of my work in the legal and medical sectors. This includes my role in delivering groundbreaking expert evidence in complex medical negligence proceedings in the High Court in the case of XX v Whittington Hospital NHS Trust [2017] EWHC 2318 (QB).  This first of its kind judgment secured the first ever UK damages award for surrogacy and represents the cross-section of medical negligence and fertility law and practice in the UK.

My specialist practice transcends both the legal and medical sectors. I am a specialist contributor on surrogacy law in leading legal reference book The International Family Law Practice (Fifth Edition, December 2016-17). I am also co-author of medical reference book Reducing Risk in Fertility Treatment (First Edition, April 2015).

I remain committed to contributing to the future landscape of the law and legal services in the UK. This includes raising awareness and understanding of complex fertility, parenting and family law issues which underpin assisted conception and fertility treatment, modern families and complex medical negligence cases with a gynaecological and fertility dimension.

The Lawyer’s Hot 100 List lists specific practice areas, which identify the most outstanding lawyers in their fields. To read more click here.

Fertility and Family Law in Action

The last 12 months has been a busy year on the fertility law front. Fertility law and practice and its association with family law has continued to evolve, both nationally and internationally.

We’ve seen evolution of policy and practice around the importance of giving informed consent to fertility treatment at UK fertility clinics licensed by the Human Fertilisation and Embryology Authority (HFEA). Informed consent to fertility treatment is one of the most important principles of healthcare.  It is designed to protect fertility patients, children and others involved in fertility treatment and more needs to be done to improve understanding of the legal issues and implications of assisted conception and management of this in practice.  In September 2015, the English High Court highlighted the very real difficulties that arise when informed consent to fertility treatment falls short, which left eight couples embroiled in legal parenthood proceedings following fertility treatment and the birth of their children and highlighted a further 75 similar cases.

We’ve also seen continued debate about surrogacy law and practice. My work as a member of the Surrogacy UK Working Group on Surrogacy Law Reform and the publication of its report Myth Busting and Reform in November 2015 sheds valuable light on the current practice of surrogacy in the UK and sets out recommendations for reform.

UK industry recognition for fertility and family law is to be welcomed. I was delighted to be awarded recognition by Chambers & Partners UK 2016. This helps raise awareness and promote the importance of fertility law in the UK.  Assisted conception can raise many complex legal and practical issues in the context of increasingly challenging family building expectations and demands of modern day living.  Assisted conception can be daunting and fertility law is not always ‘a good fit’ in practice. The provision of skilled fertility law advice helps place children born through assisted conception and their families on a secure legal footing and provides valuable support and protection if problems arise.

Fertility, parenting and family law issues have continued to feature in the media. Over the last 12 months I have contributed to public debate and provided legal commentary on BBC World Service radio and BBC Radio London, as well as in the Independent, the Guardian, the Times and legal and fertility sector press. I have also lectured on fertility, parenting and family law issues in the UK and delivered a lecture overseas in Chicago, USA, at the American Academy of Assisted Reproductive Technology Attorneys Fall Conference 2015.

BBC Radio London Interview: Solo Father Through Surrogacy Awarded Adoption Order

I was delighted to be interviewed on BBC London 94.9 ‘Have Your Say’ programme with Vanessa Feltz this morning following the English High Court’s landmark decision to grant a solo father through surrogacy an adoption order. The English High Court described the case as ‘highly unusual’ and the law as a ‘legal minefield’.

The single man became a solo father through surrogacy after his mother carried a surrogate pregnancy for him.  He conceived the baby (with his own sperm and a donor egg), now 8 months old, with the full support of his mother and father and following fertility treatment at a UK licensed fertility clinic. The solo father’s mother stepped in and carried the baby when he was unable to proceed with another female relative due to medical complications.

Under UK fertility law, the solo father’s mother and her husband were the baby’s legal parents at birth and were named as such on his initial British birth certificate.  This meant that the baby and his intended solo father were treated as having the same legal parents and regarded as legal brothers. It was not illegal under UK law for the solo father to enter into a surrogacy arrangement and conceive a child through surrogacy.  However, he was not eligible for a parental order (the legal solution for surrogacy in the UK which reassigns legal parenthood to intended parents) due to public policy restrictions which prevent single people from accessing the parental order regime.  Only couples are eligible to apply for a parental order. As a result, the solo father applied to the English Court for an adoption order to be legally recognised as his baby’s legal father.

In the first legal case of its kind, the English High Court ruled that it was in the baby’s best interests for an adoption order to be awarded in his solo father’s favour.  The case was supported by social services and followed careful consideration of child welfare issues, counselling and ethics assessment and approval at the UK licensed fertility clinic where treatment took place.  The case involved complex legal issues and required very careful navigation because of a range of complex legal restrictions and offences set out in our domestic adoption and children law. The English Court ruled that it would not break the law to award the solo father an adoption order because he and his baby were ‘relatives’ in law.

In the fact specific circumstances of this case, the solo father successfully obtained an adoption order in respect of his baby.  However,  this case highlights the very real legal difficulties faced by single people who are ineligible to apply for a parental order, particularly those who do not have a relative willing to carry a surrogate pregnancy for them. English law also remains a minefield for those undertaking surrogacy abroad.

With increasing numbers of people turning to surrogacy as a family building option of choice, there has never been a greater need to get to grips with the relevant issues and improve awareness.  Surrogacy can raise a whole host of tricky issues associated with developments in assisted reproductive technology, donor conception and inter-generational family building.  Surrogacy becomes even more complicated when people’s family building plans do not fit neatly into the confines of UK fertility law. Family life in the UK and family building expectations are evolving rapidly. There are inherent tensions and conflicts between the positions of intended parents, surrogates, donors and surrogate born children which create a complex legal picture.  Assisted reproduction is here to stay, but there is still much to be done to improve understanding and protect and support adults, children and families alike.

To listen to the whole interview click here.

BBC World Service Interview: Banning Commercial Surrogacy in Thailand

I was delighted to join the debate on BBC World Service Have Your Say on Friday 20 February 2015 following the ban of commercial surrogacy in Thailand.

The programme offered varied views and experiences about commercial and altruistic surrogacy.  Gwen Robinson, Asia Editor for Nikkei Asian Review, explained background events in Thailand which led to the Thai government’s decision to ban commercial surrogacy in Thailand last week.  the programme also featured a US surrogate mother, Minette Briant, Dr Margaret Somerville, Professor and Founding Director at Centre for Medicine, Ethics and Law, Montreal, Hans Hirsh, a parent through overseas surrogacy, Natalie Smith, a parent through UK surrogacy, Dr Nayna Patel and a UK surrogate mother, Sarah Jones.

To listen to the whole interview click here.

The issues raised by surrogacy will be further debated at the Families Through Surrogacy Conference in London on 21 March 2015, where I will be a keynote speaker. For more information click here.

Louisa Ghevaert recognised as leading expert in UK fertility and parenting law

I’m delighted to be ranked by Chambers and Partners UK Guide 2015 as a leading legal expert in surrogacy, fertility and parenting law.

Chambers & Partners identifies and ranks the most outstanding law firms and lawyers in the UK and in over 180 jurisdictions throughout the world. Their Guides are trusted by clients across the globe when they need to find a reliable and capable legal expert. Chambers UK Guide covers 50 cities and counties in England, Wales, Scotland and Northern Ireland and its rankings are the result of in-depth discussions and interviews with both lawyers and clients.

Chambers and Partners UK 2015: says about Louisa Ghevaert

“Louisa Ghevaert is a recognised expert in surrogacy, fertility and parenting law matters.  She has experience in dealing with complex parenting matters, particularly those with an international element”.

This follows on from my ranking in Chambers and Partners UK 2014 edition which said “sources describe her as an expert in a very difficult and specialised area of the law – she knows her subject extremely well and gives knowledgeable and sensible advice”.

 

International Surrogacy Law: Time Limit for parental order

The English High Court has today published a significant legal ruling on the 6 month time limit for issuing a parental order in the English Family Court set out in s54 Human Fertilisation and Embryology Act 2008.

The President of the Family Division, Sir James Munby, has  ruled for the first time in Re X (A Child) (Surrogacy: Time limit) [2014] EWHC 3135 (Fam) that the six month time limit can in some circumstances be extended.  Sir James Munby went on to grant a parental order in respect of the child born through surrogacy in India on 15 December 2011 stating:

“Where in the light of all this does the six-month period specified in section 54(3) stand?  Can Parliament really have intended that the gate should be barred forever if the application for a parental order is lodged even one day late?  I cannot think so.  Parliament has not explained its thinking, but given the transcendental importance of a parental order, with its consequences stretching many, many decades into the future, can it sensibly be thought that Parliament intended that the difference between six months and six months and one day be determinative and one day’s delay to be fatal?  I assume that Parliament intended a sensible result.  Given the subject matter, given the consequences for the commissioning parents, never mind those for the child, to construe section 54(3) as barring forever an application made just one day late is not, in my judgment, sensible.  It is the very antithesis of sensible; it is almost nonsensical”.

That said,  Sir James Munby was careful to make clear that each case will be fact specific and he went on to state:

“I intend to lay down no principle beyond that which appears from the authorities.  Every case will, to a greater or lesser degree, be fact specific.  In the circumstances of this case the application should be allowed to proceed.  No one – not the surrogate parents, not the commissioning parents, not the child – will suffer any prejudice if the application is allowed to proceed. On the other hand, the commissioning parents and the child stand to suffer immense and irremediable prejudice if the application is halted in its tracks”.

Maternity leave granted in surrogacy cases

The Government has recently announced that it will be introducing maternity leave in 2015 to parents through surrogacy. This is a step in the right direction although surrogacy law in the UK remains outdated and needs a thorough root and branch review.

From 2015, intended parents through surrogacy will be eligible for maternity pay and new flexible parental leave if they meet the legal requirements.  This follows a response to a consultation on modern workplaces run by the Department for Business, Innovation and Skills.

The new proposals include making intended parents entitled to unpaid leave to attend up to two ante-natal appointments with their surrogate,  to share one year’s parental leave post birth between them as well as eligibility to maternity pay.  This will help to stop the plight of many intended parents who currently have to carry on working or resign from work to care for their baby, placing enormous stress on them and their family.

The Government’s proposals will be worked out in greater detail next year ahead of their introduction in 2015.  The announcement of these proposals gives intended parents through surrogacy greater legal recognition than ever before, although there is still much to be done to place family building through surrogacy on an equal footing with other family building options.

Elizabeth Banks welcomes second surrogate son

Hollywood actress, Elizabeth Banks, 38, has hit the headlines again this week following the announcement of the birth of her second surrogate born son.

Baby Magnus joined older surrogate born brother Felix, aged 20 months, at her home earlier this week.  Elizabeth said “As 2012 winds down and Thanksgiving approaches, I have much for which to be thankful – personal, professional and Presidential.  However, nothing can match the joy and excitement my husband and I felt when we recently welcomed our second baby boy, Magnus Mitchell Handelman.  Like Felix, Magnus was born via a gestational surrogate. This experience has exceeded all expectations, taught us a great deal about generosity and gratitude, and established a relationship that will last a lifetime.”

Elizabeth captured the hearts of many following her honest account of her own battle with infertility and her and her husband’s decision to turn to surrogacy for the birth of their first son, Felix.  Elizabeth quickly became a role model for those looking to build families of their own through surrogacy with her sensitive approach to infertility and her decision to speak so openly and honestly about her own journey to parenthood through surrogacy.

Earlier this week, Elizabeth went on to say “I am also so very thankful to our family and friends for their support throughout this process, as well as the Center for Surrogate Parenting for helping make all this possible.  I now turn my attention to managing two boys under two. For which I am thankful.  And all their poop. For which I am less thankful. Wish me luck”.

Celebrity endorsement of surrogacy by people like Elizabeth continues to help raise the profile of surrogacy.  Elizabeth has publicly given an honest and positive experience of the process and the joy it has brought to her and those around her.  Her story helps to give hope to others battling infertility and shows that surrogacy can deliver the life-changing gift of a child.

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