Fertility preservation: Rachael Bland’s story

Last week, BBC presenter Rachael Bland’s fight to overcome her two-year breast cancer battle sadly came to an end. She was only 40 years old. She leaves behind her husband Steve and their young son Freddie. She also leaves behind four frozen embryos, following her battle to preserve her fertility.

Rachael shared her story on her blog Big C Little Me. She wrote compellingly about cancer and fertility saying on 19 February this year “Babies are probably not the first topic that springs to mind when you think about cancer but they were one of the first things I thought about after my diagnosis.  It’s another aspect of getting cancer that’s unique to being diagnosed when you’re young – the issue of what to do if you’ve not started or finished having a family”.

Rachael’s story will strike a chord with many women. She went to great lengths to preserve her fertility, even delaying chemotherapy to undergo an IVF cycle all over Christmas. She wrote on her blog “There are so many emotions to process when you’re first diagnosed and thinking about IVF as well might seem like a bridge too far.  But my advice would be to ask about fertility preservation, as you can give yourself some insurance pre-chemo but afterwards it might be a struggle.  You see, cancer treatment plays havoc with your fertility.  Chemotherapy targets fast-dividing cells, both the good and the bad and some of the fastest dividing are of course in your ovaries.  As a result, chemotherapy can leave you infertile and going into early menopause.  especially if you’re knocking on 40 like I was”.

Rachael’s four frozen embryos offered hope of another much wanted child had she overcome her battle with cancer. However, in undergoing IVF Rachael would also have completed consent forms at her UK fertility clinic stating her wishes for the storage and use of her embryos during her lifetime and in the event of her death. Depending upon her completion of these forms and her wishes, there might still be the possibility for her husband Steve to complete their family using these embryos in fertility treatment and surrogacy. 

As a fertility lawyer I have worked with many women over the last ten years who have been diagnosed with cancer and other serious medical conditions which have impaired or taken away their fertility and ability to carry a pregnancy. I have also worked with many women who have struggled to build a family in their late 30’s, 40’s and 50’s and seen the heartache caused by their diminishing fertility rates and unsuccessful fertility treatment cycles. As women increasingly delay starting a family into their 30’s and beyond, we need to do much more to proactively manage women’s fertility and its preservation. We need better education and more debate and awareness so women can make informed decisions and avoid crisis management.

You can read my further comment about fertility law and fertility preservation arising from Rachael’s story in my article in Female First.

Posthumous conception: a ray of hope for the future

I was proud to be part of the wife’s specialist fertility law team in the groundbreaking case of Y v A Healthcare NHS Trust & The HFEA & Z (by his litigation friend, The Official Solicitor) [2018] EWCOP 18.  In a unique legal ruling, The Court  of Protection (‘COP’) sanctioned the extraction, storage and posthumous use of the husband’s sperm following an accident and catastrophic injury.

The husband and wife had wanted to conceive a child and were in the early stages of fertility treatment, when he was involved in a tragic accident that caused a devastating brain injury. It was doubtful whether the husband had given his written consent to the storage and use of his sperm in fertility treatment in the legally required form, although he had discussed and agreed with his wife that his sperm should be used by her in fertility treatment and in the event of his death.

Only a fertility clinic licensed by the HFEA could extract and store his sperm and that could only be achieved with his effective consent.  Section 4(1A) of the Human Fertilisation and Embryology Act 1990 prohibits the procurement, testing, processing or distribution of sperm without a licence.  Very sadly, the husband’s brain injury left him without capacity to provide the required consent.

The Human Fertilisation and Embryology Authority (‘HFEA’) had no legal powers to authorise the retrieval, storage and posthumous use of the husband’s sperm in treatment in the UK.  The wife was unable to rely on the assistance of the Human Tissue Authority as sperm and eggs are specifically excluded from its remit under the Human Tissue Act 2004.  Furthermore, there was no case law which covered this situation.

Wanting to honour her husband’s wishes and family building plans, the wife applied to the COP for permission for the retrieval, storage and posthumous use of his sperm.  This was a groundbreaking move because the COP had never before been involved in a posthumous conception context.  The COP’s jurisdiction usually covers assistance with property, financial matters and decisions about personal welfare for people who lack capacity to make decisions for themselves.

The COP used powers under the Mental Health Act 2005 to reach a judgment that it was in the husband’s best interests for his sperm to be retrieved, stored and used by the wife in posthumous treatment in the UK.  The COP took into account all of the facts of the case and relied on evidence that the husband and wife had discussed and agreed his sperm should be used in fertility treatment and in the event of his death, they had been referred for fertility treatment and were under the care of a fertility clinician and had booked a further clinic appointment.

The case shines a light on the importance of taking ownership of your fertility and conception plans in the short, medium and longer term.  There are no guarantees in life and no one is immune from the risk of illness, injury, accidents or changes in personal situations which can have a fundamental impact on your or a loved one’s fertility.  Moreover, the law is complex and it does not always protect people or their future family building wishes.  Specialist fertility law advice can help you make informed decisions and proactively protect and maximise your fertility and family building arrangements.

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.

 

Louise Brown, the world’s first IVF baby, talks about surrogacy and assisted conception

Louise Brown (aged 33) was the first baby to be born through IVF.  Louise’s mother, Lesley, pioneered the practice of IVF in the UK (and around the world) and she sadly  died recently after developing septicaemia whilst being treated in hospital for gallstones. Louise and her mother were very close and Louise paid tribute to her mother in a recent media interview saying “She gave me life – and every woman the chance to be a mother” and “I don’t think I could have tried for a baby for as long as she did.  I’d have given up, but she never did”.

Louise, herself now a mother, endorses IVF treatment although she admits to worrying about the consequences of scientific developments  in assisted conception.  She recently said during a media interview “IVF has helped millions of couples have babies.  Of course I’d have had it myself if I’d needed to”. She went on to say “I’m happy for same-sex couples to use IVF to have a baby, but I don’t believe couples should be able to choose the sex or anything else for their child unless it’s for medical reasons”.

In terms of surrogacy, Louise said “I don’t have strong feelings about surrogacy – if it’s used properly it can help women who can’t carry a child.  Her biggest concern, however,  centres on the rising numbers of older women seeking assisted conception to become mothers.  More and more women are turning to IVF and surrogacy to have a much wanted child when their attempts to conceive naturally prove unsuccessful, often later in life after they have established their financial positions, personal lives and careers.  IVF can be very gruelling and surrogacy is not for the faint-hearted given the UK legal restrictions and the complex legal and logistical issues associated with international surrogacy arrangements. Louise acknowledges this growing trend but said “Children need their parents to be there, so I believe in having children young, to see as much of their lives as possible” and “I can understand why some older women might be desperate for a family if they haven’t had one, but I’d be worried about women in their fifties having a baby just because they can”.

The desire to have a baby can be incredibly powerful and deep seated and these feelings can drive people of all ages and walks of life to want to have a child.  In the knowledge that assisted conception, IVF and surrogacy is a global reality and that scientific developments are improving pregnancy success rates all the time, increasing numbers of people are choosing to become parents later in life and build non traditional family structures (including solo parents, co-parenting and known donor arrangements). This brings with it all manner of additional challenges, both legally and practically.

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.

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.

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.

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.

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.

Surrogacy lawyer sentenced to prison for international baby-selling

Theresa Erickson, a former prominent Californian surrogacy lawyer, was last Friday sentenced to five months in prison, nine months home confinement, three years of supervised release and a $70,000 dollar fine plus restitution for her role as ring leader of what prosecutors termed an illegal international baby-selling ring. Her sentence follows the prison sentence that was delivered to her co-conspirator and Maryland lawyer, Hilary Neiman, last December. Carla Chambers, the third co-conspirator, also received five months in prison for her role and guilty plea to knowingly receiving money from an illegal enterprise.

The legacy of this case will create longstanding issues for the intended parents, surrogates and children involved.  A point noted by the federal judge who stated that Erickson and her co-conspirators had tainted the birth stories of the children involved.  Erickson acknowledged her wrongdoing in court and said she had lost her way.

The six year scam, which  involved at least 12 fake surrogacy arrangements, stands as a stark reminder of what can happen when surrogacy and assisted reproduction goes wrong.  US prosecutors delivered a statement in court  stating that Erickson had been motivated by greed and that she had preyed upon people’s most basic need to have and raise a child, charging childless couples $100,000 or more to become intended parents and step into falsified ‘surrogacy arrangements’ where surrogates were already pregnant using donor embryo treatment in the Ukraine.

Assisted reproduction and surrogacy can offer hope to many people who are unable to have a child of their own.  Surrogacy can deliver the reality of a much wanted child and family after years of personal heartbreak and upset.  The actions of these individuals have, however, left their mark and raised questions about the control and regulation of assisted reproduction across the world and the role of the professionals involved.   International surrogacy arrangements raise a number of complex legal and practical issues for intended parents and surrogates to get to grips with, in what remains an expanding and fast moving area of law and practice. This case shows that assisted reproduction and surrogacy is not without its risks and that great care is needed at all stages of the process.