Trends in Fertility and Family Law

There have been a number of significant developments in UK fertility law, policy and practice in recent months and its association with family law.

On 15 December 2016 the HFEA approved the use of a new and innovative medical technique, which is known as mitochondrial donation. This could help around 15% of people affected by genetic diseases. UK fertility clinics can now apply to the HFEA for permission to use this technique in fertility treatment.

In February 2017, research from Harvard University found that women who work more than 40 hours a week may take 20 percent longer to get pregnant compared with women who work 21 – 40 hours a week. Their research found that lifting heavy loads several times a day may delay pregnancy by as much as 50 percent. It reported that physical strain lifting, 8 hours a day on your feet, working nightshifts and long hours at work may impair women’s pregnancy prospects. This prompted headlines that “female bankers are the least likely to conceive through IVF” and “women who work a lot may struggle to get pregnant”.

The spotlight then fell on UK fertility clinic practices. We read about “cash for eggs”, egg freezing, expensive “add-on” treatments and misleading sales pitches to fertility patients. Consequently, in May 2017 the HFEA investigated alleged breaches of its code of practice and announced it had taken enforcement action in September 2017.

Over the last year, women have been reminded not to be overly optimistic about getting pregnant in their late 30s and 40s. Companies like Apple and Facebook have started to offer fertility benefits including egg freezing to female employees. This has driven increased interest in egg freezing across the UK.

In May 2017, the HFEA issued a statement about egg freezing. It warned clinics to give accurate predictions about the chances of success, highlighting that data is limited and that available national data showed that the pregnancy rate is around 22% for women of all age groups.

A new style app, ‘Just A Baby’ launched in the UK in May 2017 bringing together prospective parents, co-parents, egg and sperm donors and surrogates. With potential candidates in your local area now just a swipe-away, it brings a new dimension to having a baby. Modern families and those formed through assisted conception represent more legally complex and difficult cases to manage and resolve. Deciding to start a family is a big step financially, practically, legally and emotionally. This makes it more important than ever before for modern families to have a strong legal foundation.

In September 2017 in a legal first, the English High Court awarded damages of £74,000 to a woman for surrogacy following a delay in detecting cancer in smear tests and biopsies. I gave expert evidence on fertility and family law issues in this case and it was a first-of-its kind award following complex court proceedings. It marked the meeting of medical negligence and fertility law in the UK and sparked debate about a new ‘fertility’ head of claim.

In December 2017, The Law Commission of England and Wales published its report on a 13th Programme of Law Reform. It announced it intends to review surrogacy law over the next 2-3 years to reach recommendations and potential draft legislation, taking the view surrogacy law is outdated, unclear and requires comprehensive reform.

In December 2017, the government also published a paper and draft remedial order to enable single people to apply for a parental order subject to meeting prescribed legal criteria. It is hoped this will pass into new law later this year.

Fertility law, policy and practice continues to evolve and this makes it important to understand and proactively manage the complex legal issues on a case by case basis. If you would like to learn more or discuss your situation, I can be contacted by email lghevaert@vardags.com or by telephone +44 (0)207 4049390.

Fertility and Parenting law team shortlisted for The Law Society’s 2012 Excellence Award in Innovation

I am delighted that my team and  have been shortlisted for the Law Society’s 2012 Excellence Award in Innovation.

This recognizes our cutting-edge, pioneering and innovative legal work helping people all over the world build families through fertility treatment, international and UK surrogacy, donor conception including known donation and co-parenting, as well as our work concerning family, children and parenting disputes.

The Law Society’s prestigious awards ceremony recognizes excellence across the legal profession and outstanding contributions from solicitors and their teams.  Winners will be announced at a black tie event on 18 October at Old Billingsgate, London.

 

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.

If you would like to discuss your situation in more detail or you would like more information about the legal issues associated with international surrogacy please email me lghevaert@vardags.com.

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.

For more information email lghevaert@vardags.com.

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.

If you would like to discuss your personal situation in more detail or you would like more information about the legal issues associated with surrogacy please email me lghevaert@vardags.com.

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. If you would like to discuss your personal situation in more detail or you would like more information about the legal issues surrounding fertility treatment, surrogacy, egg and sperm donation or parenting and children email me lghevaert@vardags.com.

 

UK surrogate pregnant for a ninth time with twins

UK surrogate mother, Jill Hawkins, is pregnant again for a ninth time.  Jill, a legal secretary from Brighton aged 47, is due to give birth to her ninth and tenth surrogate babies three weeks before her 48th birthday. Jill spoke of her pride of being a surrogate mother and how fulfilled she felt during pregnancy during a recent press interview.

Jill’s first seven surrogate  babies are reported to have been conceived through artificial insemination using her own eggs and the intended father’s sperm.  This time round, Jill conceived twins through IVF using the intended parents’ own embryos.

Jill is the most prolific surrogate mother in the UK, following Carole Horlock’s move to France  after giving birth to twelve surrogate babies. Jill and I were interviewed about surrogacy law and practice on BBC Breakfast last year (January 2011).

Surrogacy is a restricted legal practice in the UK.  There is a public policy restriction against commercial surrogacy and surrogacy contacts are not binding in law. The surrogate mother is treated in law as the child’s legal mother at birth (regardless of biology) and intended parents need to apply to court for a parental order to extinguish the legal status of their surrogate mother and obtain full legal parental status for their child.

If you would like to discuss your situation in more detail or you would like more information about the legal issues associated with surrogacy contact me by email lghevaert@vardags.com.

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.  If you would like more information about the legal issues associated with international surrogacy email me lghevaert@vardags.com.

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.

If you would like to discuss your situation in more detail or you would like more information about the legal issues surrounding surrogacy contact me by email lghevaert@vardags.com.