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.

Surrogacy should not be equated to adoption: a headache for law and policy makers?

Surrogacy and adoption are different and they should not be treated the same in law and practice.  Surrogacy has its own unique identity and character and this brings challenges for law and policy makers who seek to regulate surrogacy at home and abroad and introduce an international legal framework for the recognition of legal parentage.

Growing numbers of people are embracing international surrogacy as a family building option. There is now an ever expanding global surrogacy sector, with Bulgaria the latest country around the world to legalize surrogacy.  However, despite the rapid expansion of surrogacy and particularly international surrogacy, there is no global regulation nor a minimum set of standards which should be followed.  The Hague Conference on Private International Law is therefore investigating ways of regulating surrogacy and the University of Aberdeen is currently looking at ways of developing an international surrogacy convention similar to the Hague Convention on Inter-Country Adoption.

A key problem that law and policy makers face is the varied approach to surrogacy around the world.  Some jurisdictions prohibit surrogacy entirely, others permit surrogacy on a restricted basis and others allow surrogacy on a commercial basis.  With such a wide spectrum, it is difficult to establish any common ground. Surrogacy also engenders a number of wider sensitivities that nations across the world continue to grapple with including right to family life, the intersection of altruism and commercialism and the reality that is now the global surrogacy market. There is much work to be done by nations around the world to make sense of these issues in this new era, particularly as the science behind assisted conception (including surrogacy) and the structure of modern families has changed dramatically compared with twenty years ago.

Whilst there is an international legal framework governing adoption, it is overly simplistic to liken surrogacy to adoption and try to shoehorn surrogacy into a similar framework.  Surrogacy represents the creation of a much wanted family by intended parents.  For English legal purposes, one or both intended parents are biologically connected to their child even if they are not recognized in law as their child’s legal parents initially (pending the grant of a parental order) due to complex and outdated laws in the UK. This biological connection is a fundamental distinction that separates surrogacy from adoption. Calls to vet intended parents’ suitability to create a child to whom they are biologically related through surrogacy raises difficult issues.

Adoption regulates the placement of a child (often in need) with a family.  Surrogacy has a very different character in that it involves the conception of a child using reproductive technology.  A surrogate born child is from the outset intended to be a member of the intended parents’ family, to be cared for and brought up by his/her intended parents. The grant of a parental order recognises this intent and triggers the issue of a British birth certificate naming the intended parents as the child’s parents as if they had been so since the birth, rather than issuing an adoption certificate making them adoptive parents from the date of grant of an adoption order.

Intended parents through surrogacy have often had a long and very difficult  journey to parenthood, often following failed assisted conception treatment, medical operations and investigations, a history of miscarriage and unexplained infertility.  Yet despite this, many intended parents continue to pursue their goal of creating a family and can offer their child a loving and supportive home and upbringing. Some intended parents turn to surrogacy rather than adoption precisely because they want to have their own biological child and because they are put off by the difficulties they perceive in navigating the adoption process.  Some intended parents also perceive that their difficult fertility journey, previous medical issues or age will count against them in an adoption application and ultimately prevent them from building their family through adoption.

The English court carefully assesses all applications by intended parents for a parental order and scrutinises intended parents’ circumstances, motivations and actions as part of this process as well as their ability to meet the surrogate born child’s needs and best interests. There are therefore a series of  checks that are already built into the parental order regime, which strike a careful middle ground approach balancing the best interests of the child against the public policy restriction against commercial surrogacy and the rights of individuals to have a family life.  The parental order regime does, however, currently take place post birth and the merit of introducing a pre-birth legal process in England and Wales to bring forward the legal process and vetting procedures  (like that adopted in California) is perhaps worthy of wider debate.

Any laws or international legal protocols which are introduced to try and regulate surrogacy or limit its practice and which make it harder to undertake surrogacy may cause problems in practice.  Given the widely different approaches to surrogacy across the globe, it is difficult to see how a global consensus will be reached and this could continue to drive intended parents to circumvent  legal frameworks that are introduced to regulate surrogacy and run the legal gauntlet notwithstanding the risks. There have already been a number of internationally publicised cases where intended parents have crossed borders to particiapte in surrogacy programmes in cirumstances where surrogacy is not permitted in their homeland (or is legally restricted) and which has resulted in palpable difficulties for them and their surrogate born baby.

The expanding global surrogacy sector, readily accessible information about foreign surrogacy destinations on the internet, celebrity endorsement of surrogacy and media coverage as well as ever improving success rates associated with fertility treatment can make surrogacy an appealing family building option, particularly if other fertility treatments have been unsuccessful. Surrogacy can bring immeasurable joy to people who’s lives have previously been blighted by the pain and heartache associated with infertility. Surrogacy can make people’s dreams of having a family come true, create new life and represent a truly life-changing gift.

Surrogacy is therefore far more than the placement of a child (often in need) with a family.  Surrogacy represents the conception of a much wanted child by intended parents who want to become parents and who are for English legal purposes biologically connected to their child. In practice, a surrogate born baby becomes part of the intended parents’ family at birth and is cared for by them from day one, unlike adoption. The special unique character and identity of surrogacy therefore needs greater understanding and recognition.  Surrogacy is different from adoption and it should not be treated the same in law or practice and this creates challenges for law and policy makers looking ahead.

International surrogacy article featuring Louisa Ghevaert published in fertility magazine Fertility Road

An article of mine entitled “International surrogacy: a legal minefield?” is featured in the winter 2011/2012 edition of fertility magazine Fertility Road.  The article tackles the complex legal issues associated with international surrogacy, highlighting the difficulties, key legal steps, the issues surrounding travelling home to the UK with baby and the legal requirements for a parental order.

International surrogacy can seem very appealing due to accessible information about foreign surrogacy destinations on the internet, celebrity endorsement and an expanding global surrogacy sector.  However, the legal issues are complex and this can create many problems without careful management and expert legal help.

Fertility treatment and parenting: a quantum shift?

Increasing numbers of people are using surrogacy, in vitro fertilization (IVF) and egg and sperm donation to build families and many will cross borders in the process. People now have more choice than ever before about the creation of their family and this is changing the character and identity of family life and parenting in the UK.

Growing numbers of people are  choosing to cross borders to access reproductive treatment, motivated by cost considerations, greater availability of donor eggs and sperm abroad and permissive legislation which in some foreign destinations endorses surrogacy on a commercial basis.

Families created through surrogacy, donor conception and fertility treatment  have a unique family history and identity all of their own.  Parents have often struggled hard to achieve their much wanted families and many will become parents later in life, often against a backdrop of  unsuccessful treatment, unexplained infertility and miscarriage.  Increasing numbers of families created in these ways will also involve known donors, co-parenting arrangements and solo mothers.

Fertility treatment and family building raises all manner of legal issues, including  immigration and citizenship considerations, donor information rights, acquisition of parental status and the need for carefully crafted parenting plans and agreements for those families involving known donors and co-parents.

Fertility, infertility and parenting: is fertility preservation for women the way forward?

Increasing numbers of women in the UK are postponing plans to have a family. Instead, many women are prioritising a foothold on the property ladder, career progression and consolidation of their financial positions and relationships.

The average age of new mothers in the UK is now 30 years, whilst women are at their most fertile aged 20-25 years. Half of all women undergoing IVF in the UK are over 35 years and functional infertility becomes a reality for many women from around age 40.

Women can struggle to conceive later in life and their journey to parenthood can be difficult and fraught with anxiety and disappointment.  Some will also have to face the painful reality that they will never carry a successful pregnancy or have their own biological child (although surrogacy and egg donation can offer hope and can create a much wanted family when natural conception or IVF treatment using their own eggs is no longer a possibility).

As women delay having a family until later in life, this increases the numbers of only children and these offspring are themselves more likely to go on to become older mothers themselves and have only one child of their own.  This raises continued concerns about a perceived ‘generation gap’ and a shrinking UK population that has to support ever increasing numbers of retired people.

The effects of these changing social trends on women’s fertility and family building plans in the UK therefore raises important issues.  It  begs lots of questions, including should we be doing more to preserve women’s fertility and should egg freezing for women be given greater consideration in the UK?  Science and technology has moved on and there has been significant improvements in egg freezing techniques over the last three years. Spain has become particularly successful at egg freezing and thawing and in some cases can require as little as five thawed eggs to establish a pregnancy. Egg freezing avoids the creation of frozen embryos (with the ethical concerns this can raise) and can preserve a women’s ability to have a biological child of her own in future or complete her family, when her biological clock may otherwise have run out.

Women face increasingly difficult life choices in the UK, having to balance economic concerns, relationships and the constraints of their biological and fertility clock.  For growing numbers of women, having a family is perceived to be the last piece of the jigsaw and this delay may prove fatal in terms of their ability to have or complete their family naturally. Egg freezing may offer some breathing space and hope for women who may otherwise not be able to fulfill their hopes and dreams of having a family, although it raises a number of potentially sensitive issues.  Overall, there is still much to be done in the UK to raise awareness of the issues surrounding fertility (and its preservation), infertility and the importance of planning for parenthood.

UK Donor Link wins temporary reprieve

The UK Donor Link (UKDL) has won a temporary funding reprieve, following the award of a further government grant up until the end of March 2012 while more permanent funding is sought. This has enabled UKDL to re-open its doors to new registrants on 15 September 2011 (having previously closed to new registrants on 26 August 2011 due to lack of funds).

In a letter  to UKDL dated 5 September 2011 the Parliamentary Under Secretary of State for Public Health, Anne Milton, said “I am keen for options to be considered in the next few months, bearing in mind the difficulties that have been encountered in sorting out a more settled future for the register.” The UKDL has set up an ePetition calling on the government to restore its funding to safeguard the service and it remains highly concerned about its uncertain funding position.

UKDL enables donor conceived people, their donors and half-siblings to exchange information and where agreed contact each other. The register is available throughout the UK and helps individuals who were conceived with donor gametes and donors who donated before the Human Fertilisation and Embryology Act came into force in 1991.

As a specialist in fertility and parenting law in the UK, “I am delighted that UKDL has secured a temporary funding reprieve until March 2012.  However, there is a real need for longer term funding to be put in place to safeguard the invaluable service UKDL provides, enabling donor conceived individuals and donors to access information about their genetic origins and make contact with genetic relatives  when they might not otherwise be able to do so (as donors were usually anonymous and there was no legal requirement to maintain records before August 1991).  If UKDL is forced to close next year due to lack of funding it could have devastating consequences for donor conceived people and donors across the UK and it would be a serious retrograde step and an immeasurable loss to the fertility sector.”

International Surrogacy: Australian couple could face criminal charges following surrogacy in Thailand

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.

High Court Judge grants surrogacy parental order in favour of a deceased parent

The latest international surrogacy case to be published by the English High Court, namely A and A v P, P and B [2011] 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 Magazine features parenting law expert Louisa Ghevaert on the legalities of surrogacy, adoption and fostering

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.