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.

BioNews Article: IVF, donor conception and surrogacy: Is progressive global regulation possible?

BioNews have this week published my comment piece entitled “IVF, donor conception and surrogacy: Is progressive global regulation possible?”

Assisted reproduction in the form of IVF, donor conception and surrogacy is challenging global attitudes towards medical science and is presenting a unique global regulatory challenge.

IVF policy and practice differs across the world.  For example, the UK has opted for a closely regulated legislative framework overseen by the Human Fertilisation and Embryology Authority (HFEA).  In contrast, in the USA greater emphasis is placed on the fertility sector’s ability to self-regulate.

Surrogacy creates legal and practical difficulties on an international scale due to conflicting laws and practice. There have been a series of internationally publicised surrogacy cases in recent years where intended parents and their surrogate born children have found themselves embroiled in serious legal difficulties, with babies stranded abroad and their intended parents risking criminal sanction.

Underpinning assisted reproductive technology, including IVF, donor conception and surrogacy are some very fundamental issues about the right to have a child and a family life, the interests of children conceived using assisted conception techniques, and the structure of modern day families. Sesitive and difficult issues may also arise surrounding altruism, commercialism and freedom of choice. Assisted reproduction techniques now enable children to be conceived and families to be created in a number of different ways that were simply not possible 40 years ago. Fertility treatment and practice now has a global reach which has out-paced legislation and regulation.

Until we begin to get to grips with these issues in their widest sense, it is difficult to see how any form of progressive international consensus or regulation will be reached in relation to assisted reproduction. In the meantime, IVF, donor conception and surrogacy remain key topics for debate, policy formulation and regulation amongst nations across the globe.

IVF postcode lottery: Louisa Ghevaert joins BBC Radio Somerset debate on IVF funding

Louisa Ghevaert joined Matt Faulkener’s BBC Radio Somerset Breakfast Show to debate the problems associated with accessing free IVF fertility treatment on the NHS.

All three local PCT’s in Somerset are ignoring government guidelines on how many cycles of IVF should be offered to couples free on the NHS, a picture which is mirrored across the country.   The National Institute for Health and Clinical Excellence (NICE) says that PCT’s should offer infertile couples three attempts free on the NHS. Local PCT’s in Somerset are only offering one or two free cycles of IVF on the NHS, whilst nationally 73% of PCT’s offer less than three cycles and 39% of PCT’s only offer one free cycle of IVF.

The Prime Minister recently joined the chair of the All Party Parliamentary Group on Infertility (APPG), Gareth Johnson MP, in calling for all Primary Care Trusts (PCT’s) to follow the NICE Guidelines and offer fertility patients three cycles of free IVF treatment on the NHS. The APPG report uncovered that there are wide variations across the country.  For example in North Somerset PCT, infertile couples where the woman is aged 23-39 are eligible for one free IVF cycle  on the NHS, whilst in Dorset infertile couples are eligible for two cycles but only if the woman is aged 30-35, whilst in Hampshire infertile couples are only eligible for one cycle if the woman is aged 30-34.  Five PCT’s were highlighted in the APPG report as not offering treatment at all, including North Yorkshire, North Staffordshire and West Sussex.

Private fertility treatment typically costs £4,000 – £8,000 per cycle in the UK depending upon the specific treatment involved.  The IVF postcode lottery and differing IVF funding policies from PCT to PCT can cause immeasurable pain and heartache for fertility patients when faced with the stark reality that they will not be offered the recommended three free IVF cycles on the NHS or worse still none at all.

If you are experiencing problems accessing free IVF fertility treatment through your local PCT, contact The Infertility Network UK for free help and support.

International Surrogacy: Ukrainian legal changes afoot?

It is understood that draft legislation has recently been introduced into the Ukrainian parliament, which if passed, would prevent foreign nationals from undergoing surrogacy in the Ukraine.  The draft legislation is believed to have been introduced in response to recently publicized cases involving foreign intended parents who have experienced serious problems obtaining travel papers to enable them to take their surrogate born babies out of  the Ukraine and return to their homeland. The legislation is currently understood to remain in draft format.

In the absence of express legislation regulating surrogacy, the legal landscape in the Ukraine is perceived as “surrogacy friendly”.  However, the legal position is complex and some foreign nationals and their surrogate born babies have unwittingly found themselves embroiled in difficult international legal battles. Different jurisdictions adopt different approaches to surrogacy, with some banning it altogether and others allowing it on a restricted and regulated basis (as is the case in the UK). This creates a legal minefield which can leave surrogate born babies stranded abroad without legal status or citizenship and without the means to travel home with their intended parents.

Expert legal advice is therefore essential from the outset in what remains an evolving area of law.

International surrogacy: should there be global regulation?

Surrogacy has become an increasingly popular family building option on a global scale in recent years.  Unlike adoption and private international children law, there is no international harmonisation of surrogacy law (or surrogacy practice).  Each jurisdiction adopts its own laws and regulation of surrogacy, resulting in very different approaches to surrogacy across the world, with some banning it altogether and others permitting it on a commercial basis.

The international patchwork approach to surrogacy creates all manner of legal and practical difficulties (as well as ethical sensitivities).  It increasingly challenges attitudes and policy governing fertility treatment, regulation and availability of donor eggs and sperm, incidence of multiple birth, commercialised conception and its intersection with altruism and freedom of choice, suitability and vetting of intended parents and surrogates and the character and identity of modern families created through surrogacy. It creates international conflicts of surrogacy law, which can leave surrogate born children vulnerable and stranded in foreign jurisdictions and at risk of placement in foreign orphanages.  It can also lead to criminal sanctions being taken against intended parents.

The reality is that people can cross borders and enter into commercial surrogacy arrangements in foreign jurisdictions, even if it would be illegal to undertake surrogacy on the same basis (or at all) under their own domestic law.  Sophisticated assisted reproduction techniques and commercially available surrogates, donor eggs and sperm and professionally run surrogacy organisations in some foreign jurisdictions can deliver a much wanted baby.  The best interests of that child then inevitably have to weigh into the equation, placing increasing pressure on governments and policy makers.  The surrogate born child is biologically the child of one or both intended parents and its whole future, identity and human rights are then called into question in the event of conflicting international surrogacy laws, policy and practice which can threaten his/her right to family life.

Surrogacy in its widest sense is very different from adoption and private international children law as it applies to naturally conceived children.  Surrogacy raises fundamental questions about the creation of human life, the remit and capability of fertility treatment and assisted reproduction techniques, altruism and commercialism, freedom of choice and the very powerful inherent human desire among increasing numbers of people to want to build a  family through surrogacy and assisted reproduction when other options have failed.

Given the wide global differences in attitudes to surrogacy law, policy and practice is it feasible to achieve global regulation? Until we begin to get to grips with the issues surrogacy creates in its widest sense, it is difficult to see how any form of international regulation or consensus will be reached.

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.

Infertility, fertility law and treatment: how big a problem is it in the UK?

The National Institute for Health and Clinical Excellence (NICE) defines infertility as failing to get pregnant after two years of regular unprotected intercourse.  Infertility is the commonest reason why women aged 20-45 visit their GP (aside from pregnancy).

Infertility is currently estimated to affect one in six couples in the UK (about 3.5 million people) at any one point. If you add to this the number of single people and same-sex couples looking to conceive (many of whom are not infertile but seek to rely on fertility treatment to conceive) and the scale of infertility, demand for assisted conception and reliance upon fertility law increases significantly.

Reasons for infertility and demand for fertility treatment

There are many reasons associated with infertility and demand for fertility treatment, including, cancer, gynaecological problems, low sperm count, unexplained infertility, women delaying having a family until later in life (perhaps to establish a career), second time relationships, inability to find the right partner with whom to start a family, relationship breakdown, decision to become a solo parent, becoming a known donor or co-parent, gay and lesbian parenting.

Fertility treatment options and success rates continue to improve as medical technology develops. Greater awareness and social acceptance of fertility treatment, families created through assisted conception outside heterosexual marriage, celebrity endorsement and media coverage encourage increasing numbers of people to build families in this way.  Infertility, sexual orientation or single status is no longer necessarily a bar to having a much wanted family.

Fertility law and treatment

Fertility law and fertility treatment do not always sit comfortably with each other in the UK.  Despite the overhaul of fertility law in the UK in 2008 (the first in 20 years), it is still not entirely joined up with the demand for, and creation of, many modern day families through donor conception, surrogacy, co-parenting and known donor arrangements.

Whilst improvements were introduced to donor conception law in 2008, difficulties remain. Lesbian mothers now both become their child’s legal parent at birth and are named as such on their child’s birth certificate as civil partners or through nomination of the non birth mother as second legal parent using the appropriate forms at a UK licensed fertility clinic.  However, legal problems can arise for non civil partnered lesbian couples conceiving by privately arranged artificial conception at home, conferring unwanted legal parenthood and financial responsibility upon a known male donor.  As lesbian civil partners, they also automatically oust the legal parenthood status of a male co-parent (and biological father), which can upset the desired family dynamic and structure.

Solo mothers must take particular legal care if they conceive through donor conception. For some married couples, gruelling rounds of unsuccessful IVF and treatment can place untenable strain on their marriage causing it to breakdown. Faced with a ticking biological clock, the woman may then seek donor conception treatment at a licensed fertility clinic presenting as a single woman (although she is still married).  Donor conception law dictates that her husband is treated in law as the child’s father unless steps are taken to prevent this.

Single women choosing to conceive with a known donor must also beware of the legal pitfalls. If a single woman conceives by private arrangement at home, then her known donor will become her child’s legal father and become financially responsible for the child and so she will not achieve legal parental autonomy.  If she conceives through known donation at a licensed clinic, she will need to take care over the legal position if she wishes to ensure her known donor will have no legal status for her child (by filling in the requisite legal forms appropriately).  Donor agreements are also useful tools in any known donation case, providing legal clarity and helping to crystallize the expectations and agreement of the parties for the child (and which can also be useful evidence in the event of a subsequent legal dispute over the child).

The law surrounding surrogacy in the UK is also complex. The law confers legal parenthood upon the surrogate mother and her husband for the child and intended parents must apply to the court for a parental order in order to reassign legal parenthood to themselves and extinguish the legal status of the surrogate parents for their child.  Single people cannot apply for a parental order for a surrogate born child to become the child’s legal parent.  Surrogacy law was not designed to cater for international surrogacy arrangements and creates international conflicts of law which can leave children born abroad to foreign surrogates stateless and parentless with no rights to return home to the UK with their intended parents.

A significant proportion of UK society is therefore affected by infertility, fertility law and treatment.  It brings with it many challenges and anyone contemplating assisted conception should take care to tackle the legal and practical issues from the start so they are well prepared for what lies ahead.

Fertility Law: multiple IVF birth numbers continue to fall in the UK

The latest figures released by the HFEA show that the numbers of multiple births following IVF continue to fall in the UK. Multiple births are considered to be the biggest fertility treatment risk for mothers and babies, which led to the HFEA’s introduction of a single embryo transfer policy in the UK in 2007.
The HFEA’s first multiple IVF birth target of 24% was introduced in 2009/10. This was reduced to 20% in 2010/11. As from April this year, a new target of 15% of all IVF births was set for each UK licensed fertility clinic to meet by April 2012. Between 2008 and mid 2009 the IVF multiple birth rate fell in the UK from 23.6 percent to 22 percent with an overall pregnancy rate of 31.3%.
Single embryo transfer in the UK is considered most appropriate for women aged under 37 years with good quality available embryos. IVF remains a globally important fertility treatment option, although different countries adopt different approaches to the issue of multiple births, with the HFEA’s remit only extending across the UK.
IVF can be an invaluable treatment option for those struggling to conceive, offering hope and the prospect of a much wanted family for the single woman or lesbian couple conceiving with donor sperm or a known donor, for heterosexual couples looking to conceive with their own or donor gametes, for single men and gay couples entering into a co-parenting or known donor arrangement and for those building families through surrogacy. IVF can raise complex fertility law issues, particularly for those looking to create alternative family structures, undergo surrogacy or those with complicated personal situations, making specialist legal advice a must at the outset.  

International Surrogacy: beware of the legal difficulties warns High Court Judge

International surrogacy case Re: IJ (a child) 2011 is the latest  High Court decision to be published in the UK, awarding legal parenthood to British parents who’s surrogate born child was born stateless and parentless in the Ukraine. The child, known only as IJ, was born without any citizenship anywhere in the world due to an international conflict of law – Ukrainian law regarded the British couple as the parents whilst English law treated the Ukrainian surrogate mother and her husband as the parents.  The High Court granted legal parenthood to the British parents to safeguard IJ’s welfare even though they had entered into a binding commercial surrogacy arrangement in the Ukraine, which breached public policy restrictions designed to prevent commercial surrogacy in the UK.

The case contains a stark warning by English High Court Judge, Mr Justice Hedley, about the legal difficulties that overseas surrogacy can create.  Mr Justice Hedley highlights the very real difficulties the British couple experienced trying to obtain immigration clearance to bring IJ home to the UK, made worse by IJ’s need for hospital treatment in the Ukraine. He emphasizes the fact that the British couple “who had done their conscientious best to act lawfully and to be prepared for all contingencies, had been mislead by some unduly simplistic advice from the Ukrainian surrogacy agency”.

Mr Justice Hedley also stresses in the judgment the critical importance of obtaining expert legal advice saying “those who travel abroad to make these arrangements really should take advice from those skilled in our domestic law to be sure as to the problems that will confront them (not least of which is immigration) and how they can be addressed.  Reliance on advice from overseas agencies is dangerous as the provisions of our domestic and immigration law are not fully understood”.

This is not the first time that British people have got into legal difficulties entering into international commercial surrogacy arrangements, leaving surrogate born children legally vulnerable and stranded abroad.  The case echos the case of Re X and Y (foreign surrogacy) 2009, where twins were born stateless and parentless in the Ukraine to a British couple who despite their best efforts had not been made aware of the complex legal issues associated with commercial international surrogacy arrangements. The High Court stepped in on that occasion too and awarded legal parenthood to the British couple to safeguard the twins and issued a warning about the associated legal difficulties which continue to require careful in-depth scrutiny by the High Court on a case by case basis.

International surrogacy arrangements are fraught with legal difficulties because there is no international harmonisation of surrogacy law.  Foreign birth certificates and foreign parentage orders in respect of surrogate born children are not automatically recognized in the UK and intended parents must usually apply to the English court for a parental order to obtain legal parenthood and legally secure their family.  As interest in surrogacy grows, with the rise of foreign surrogacy destinations including Ukraine, India and some US states, ever present media interest and celebrity endorsement by the likes of Elton John and Nicole Kidman, there has never been a greater need to understand and manage the legal issues to avoid the legal pitfalls.

I successfully acted for the parents in both Re: IJ (a child) 2011 and Re X and Y (foreign surrogacy) 2009 and to read more information visit my  international surrogacy page.