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.

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.

US hospital chain seeks to recoup money following illegal surrogacy ring

A San Diego hospital chain is reported to be seeking to claim back hundreds of thousands of dollars  from the ringleader of what US prosecutors alleged was an illegal “baby-selling ring”.  The ringleader, who pleaded guilty to wire fraud last August, is due to be sentenced this month and could face up to five years in prison. The hospital claims it lost money on the care and delivery costs of seven children born as a result of the illegal actions of the professionals involved.

This US surrogacy scandal, which sent shock waves through the international assisted reproduction and surrogacy sector, stands as a continued reminder of the problems and pitfalls that can arise. International surrogacy raises many complex legal issues and can become a minefield for the unwitting.

Further celebrity endorsement fuels demand for international surrogacy

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.

International Surrogacy: British couple allowed to keep children born to two Indian surrogate mothers

Sir Nicholas Wall, President of the Family Division gave judgment earlier this week awarding parental orders to a married British couple to secure the legal status of  their two children in their care following an international surrogacy arrangement in India.  The two children were conceived with two different Indian surrogate mothers using an anonymous egg donor and the intended father’s sperm.

The couple paid approximately £27,400 in medical and care costs, including sums of approximately £3,000 to each of the Indian surrogate mothers. The baby boy and girl were born within days of each other and are now just over a year old. Sir Nicholas ruled that the couple had acted in good faith and the amount paid to each surrogate mother was not so disproportionate that the grant of parental orders “would be an affront to public policy”. He authorised the payments made to the two Indian surrogate mothers, notwithstanding the public policy restriction against commercial surrogacy in the UK on the basis that it was in the children’s best interests to be brought up by their intended parents.

This legal judgment is the second to be published by the English court this year involving British couples who have entered into an international surrogacy arrangement in India. It follows a handful of other published cases  involving British couples who have entered into international surrogacy arrangements in certain US surrogacy friendly states and the Ukraine and who successfully secured parental orders for their surrogate born children.

Surrogacy lawyer in US international baby-selling ring sentenced

The first of three women who pleaded guilty to her role in an international baby-selling ring has been sentenced to one year in custody by a US federal judge according to a news report in Signon San Diego.  The judge admonished her for preying on people’s desire to have children and said she had brought the legal profession into disrepute.

Former Maryland lawyer, Hilary Neiman, was also ordered by US District Judge Anthony Battaglia to forfeit $133,000 being the known profits that prosecutors said she made for her part in the fraud.

The sentence was more severe than the nine months home confinement both sides had agreed.  The judge disagreed and sentenced her to five months in prison and a further seven months in home confinement following her guilty plea in April to conspiracy to commit wire fraud. The judge said he was not convinced that she fully appreciated the seriousness of her involvement in the fraud.

Hilary Neiman was charged alongside a former prominent US surrogacy lawyer from Poway and a woman from Las Vegas for the fraud which profited from surrogacy laws in California. They recruited US surrogate mothers to travel to the Ukraine for IVF treatment and then found parents to “assume” fake surrogacy agreements for sums reported to cost around $100,000. The other two women are due to be sentenced in January 2012.

The fraud has sent shock waves through the international surrogacy and fertility law community and graphically demonstrates the need for anyone contemplating an international surrogacy arrangement to take great care and to obtain reputable expert legal help.

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.

Pink Parenting magazine features article on international surrogacy: navigating the legal pitfalls

Pink Parenting magazine features an article by me in its September/October 2011 issue on navigating the legal pitfalls associated with international surrogacy.

This issue of Pink Parenting also covers 10 steps to adoption, an article on sex selection of babies and an interview with actress Cynthia Nixon on her same-sex parenting journey.  It further includes an article explaining one couple’s emotional fostering journey, www.pink-parenting.com.

International surrogacy raises complex legal issues and there are many legal pitfalls.  It is important to ensure you can travel home safely with your baby after the birth and obtain the necessary travel papers to achieve this.  Intended parents also need to secure their legal status as parents in the UK  after the birth through a post birth legal process known as a parental order application.

International surrogacy and fertility law: is greater regulation needed?

The American Fertility Association (The AFA) has reportedly been inundated with questions from prospective parents and professionals about whether there should be additional regulation of surrogacy following the recent criminal investigation and prosecution of three US surrogacy lawyers. People have reacted with anger and shock to the news that these professionals have acted illegally and that surrogacy has once again been placed in the spotlight.

The AFA has stated that “it is easy to forget that assisted reproduction is, in the vast majority of cases, a process with integrity and humanity” and that “many people who choose to build their families through surrogacy can feel secure that the vast majority of professionals, surrogates and parents are decent and honest.”

The AFA believes there should not be greater regulation of surrogacy because regulation does not necessarily promote good practice. It points out that there are already regulations, policies and laws in some US states about surrogacy and that those few professionals who were willing to break the law would have done so whether or not there had been additional regulation.

Many have asked why these US professionals acted illegally and this remains unclear. The AFA has stated that “there are desperate people who will take desperate measures to fulfill their dreams of becoming parents – and there will always be some individuals who will take advantage of them if they can.  As an organization, The AFA’s goal is to try to ensure access to family building methods that are safe, informed and legal.” It also emphasizes that  “The AFA denounces the practices that have reportedly occurred.  Any kind of so-called “baby selling” is abhorrent, and contrary to everything that we stand for” http://www.theafa.org/blog/desperate-measures-the-afas-co-chairs-respond-to-recent-headlines/.

The legal restrictions surrounding surrogacy in the UK are designed to prevent the commercialization of surrogacy and stop the sort of activity reported to be at the heart of the recent US surrogacy criminal investigation. Commercial surrogacy agencies are prohibited and surrogacy contracts are not enforceable in the UK.  However, surrogacy law and practice remains legally complex, particularly when intended parents cross borders and enter into international surrogacy arrangements.  Anyone contemplating surrogacy in the UK or abroad should proceed with care and thoroughly investigate the legal issues from the start.

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.