Fertility and Family Law Trends

There have been significant trends and developments in fertility and modern family law over the last year. We have seen debate and new guidance on the merits of IVF ‘add-ons’. There has been increased focus on fertility preservation, including egg freezing and posthumous conception. There have also been changes and developments in surrogacy law and practice.

IVF ‘add-ons’

There has been growing debate and coverage about the efficacy and merits of IVF ‘add-ons’. As a result, the HFEA has today published a consensus statement together with 10 leading professional and patient fertility groups, on how IVF ‘add-ons’ should be offered ethically to patients undergoing treatment. This follows growing concerns about the benefits and costs of IVF ‘add-ons’ offered to fertility patients. The Chair of the HFEA, Sally Cheshire CBE said:

“It’s crucial that clinics are transparent about the add-on treatments they offer, including the potential costs, to ensure patients know exactly whether they are likely to increase their chance of having a baby.

“That is why we’ve been working with professional groups such as the British Fertility Society to decide how unproven treatments into clinical practice should be correctly and ethically introduced, which is a vital step towards a more transparent approach in fertility services.

“We are now expecting clinics to provide information about treatment add-ons to patients, including what evidence there is of effectiveness.”

This follows the HFEA’s decision to publish ‘traffic light’ rated information about the merits of IVF ‘add-ons’ in May 2018 and its updated guidance today. This system grades various ‘add-on’ treatments. A red rating signifies there is no evidence it is effective and safe. An amber rating signifies there is a small or conflicting body of evidence and further research is needed meaning ‘the technique cannot be recommended for routine use’. A green rating signifies there is more than one good quality trial which shows the procedure is effective and safe. However, currently none of the assessed ‘add-ons’ have been given a green rating and today’s HFEA guidance concludes ‘we don’t think any of these techniques should be used routinely.’

Significant numbers of fertility patients have invested precious time, energy and money in IVF ‘add-ons’ in the hope of having a much wanted child. Given this latest HFEA guidance about ‘add-ons’, it begs further questions about their use and benefit in treatment and the implications for patients and their families.

Fertility preservation

In today’s busy and uncertain times, there is more need than ever to consider fertility preservation and maximisation. Increasing numbers of people are leaving it longer to settle down and have children for a variety of reasons including, education, career building, economic factors and difficulties meeting a suitable partner.

Whilst we often ‘future proof’ other areas of our lives, many people are not taking adequate steps to preserve and maximise their fertility.  This can risk serious problems and heartache for those that go on to grapple with their own or a loved one’s dwindling fertility window, accident, illness or death.

Whilst egg freezing techniques have improved in recent years, there is still only limited data on success rates in practice. In 2016, egg freezing made up only 1.5% of the 68,000 treatment cycles carried out. Egg freezing is not risk free and it does not guarantee a baby.  It also carries a cost of between £7,000 – £8,000 for egg freezing, thawing and transfer.

Illness or death can strike at any time. Last year BBC broadcaster Rachael Bland went to great lengths to highlight her 2-year battle with breast cancer and her fight to preserve her fertility on her blog Big C Little Me. Her story continues to strike a chord with many women and you can read more on my blog and in my article in Female First.

There was also increased focus on posthumous conception last year. This follows a first-of-its-kind legal ruling last summer by The Court of Protection to step in and protect the sperm of a fatally injured man, who had been in the early stages of fertility treatment with his wife. I was part of the wife’s legal team and this ruling is significant because it sends an important message that in appropriate circumstances individual fertility and reproductive legacy is capable of protection. You can read more on my blog and in my comment piece.

Surrogacy law reform and practice

On 3 January 2019 new law came into operation which for the first time enables single people to apply for a parental order for their surrogate born child.  This is welcome news and follows years of calls for law reform by many in the sector including myself.

Single applicants must meet the relevant legal criteria, which includes being their child’s biological parent and applying within six month’s of the birth.  There is also a six month remedial window in which applications can be made for older surrogate born children within six months of the law changing i.e until 2 July 2019.

However, further reform is still needed to make outdated surrogacy law fit for 21st century family building in Britain. I was honoured to give expert evidence on surrogacy law reform to The All Party Parliamentary Group on Surrogacy (APPG on Surrogacy) led by Andrew Percy MP in parliament in November 2018. I was pleased to see lively discussion about the issues and to share my thoughts and suggestions for law reform following my legal work in this area over the last decade.

Fertility and family law for modern families continues to rapidly evolve. This makes it important for people to take time to understand the complex legal landscape and take proactive measures to preserve their fertility and protect their much wanted children and families.

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.

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.

BBC Radio London Interview: Solo Father Through Surrogacy Awarded Adoption Order

I was delighted to be interviewed on BBC London 94.9 ‘Have Your Say’ programme with Vanessa Feltz this morning following the English High Court’s landmark decision to grant a solo father through surrogacy an adoption order. The English High Court described the case as ‘highly unusual’ and the law as a ‘legal minefield’.

The single man became a solo father through surrogacy after his mother carried a surrogate pregnancy for him.  He conceived the baby (with his own sperm and a donor egg), now 8 months old, with the full support of his mother and father and following fertility treatment at a UK licensed fertility clinic. The solo father’s mother stepped in and carried the baby when he was unable to proceed with another female relative due to medical complications.

Under UK fertility law, the solo father’s mother and her husband were the baby’s legal parents at birth and were named as such on his initial British birth certificate.  This meant that the baby and his intended solo father were treated as having the same legal parents and regarded as legal brothers. It was not illegal under UK law for the solo father to enter into a surrogacy arrangement and conceive a child through surrogacy.  However, he was not eligible for a parental order (the legal solution for surrogacy in the UK which reassigns legal parenthood to intended parents) due to public policy restrictions which prevent single people from accessing the parental order regime.  Only couples are eligible to apply for a parental order. As a result, the solo father applied to the English Court for an adoption order to be legally recognised as his baby’s legal father.

In the first legal case of its kind, the English High Court ruled that it was in the baby’s best interests for an adoption order to be awarded in his solo father’s favour.  The case was supported by social services and followed careful consideration of child welfare issues, counselling and ethics assessment and approval at the UK licensed fertility clinic where treatment took place.  The case involved complex legal issues and required very careful navigation because of a range of complex legal restrictions and offences set out in our domestic adoption and children law. The English Court ruled that it would not break the law to award the solo father an adoption order because he and his baby were ‘relatives’ in law.

In the fact specific circumstances of this case, the solo father successfully obtained an adoption order in respect of his baby.  However,  this case highlights the very real legal difficulties faced by single people who are ineligible to apply for a parental order, particularly those who do not have a relative willing to carry a surrogate pregnancy for them. English law also remains a minefield for those undertaking surrogacy abroad.

With increasing numbers of people turning to surrogacy as a family building option of choice, there has never been a greater need to get to grips with the relevant issues and improve awareness.  Surrogacy can raise a whole host of tricky issues associated with developments in assisted reproductive technology, donor conception and inter-generational family building.  Surrogacy becomes even more complicated when people’s family building plans do not fit neatly into the confines of UK fertility law. Family life in the UK and family building expectations are evolving rapidly. There are inherent tensions and conflicts between the positions of intended parents, surrogates, donors and surrogate born children which create a complex legal picture.  Assisted reproduction is here to stay, but there is still much to be done to improve understanding and protect and support adults, children and families alike.

To listen to the whole interview click here.

Maternity leave granted in surrogacy cases

The Government has recently announced that it will be introducing maternity leave in 2015 to parents through surrogacy. This is a step in the right direction although surrogacy law in the UK remains outdated and needs a thorough root and branch review.

From 2015, intended parents through surrogacy will be eligible for maternity pay and new flexible parental leave if they meet the legal requirements.  This follows a response to a consultation on modern workplaces run by the Department for Business, Innovation and Skills.

The new proposals include making intended parents entitled to unpaid leave to attend up to two ante-natal appointments with their surrogate,  to share one year’s parental leave post birth between them as well as eligibility to maternity pay.  This will help to stop the plight of many intended parents who currently have to carry on working or resign from work to care for their baby, placing enormous stress on them and their family.

The Government’s proposals will be worked out in greater detail next year ahead of their introduction in 2015.  The announcement of these proposals gives intended parents through surrogacy greater legal recognition than ever before, although there is still much to be done to place family building through surrogacy on an equal footing with other family building options.

Elizabeth Banks welcomes second surrogate son

Hollywood actress, Elizabeth Banks, 38, has hit the headlines again this week following the announcement of the birth of her second surrogate born son.

Baby Magnus joined older surrogate born brother Felix, aged 20 months, at her home earlier this week.  Elizabeth said “As 2012 winds down and Thanksgiving approaches, I have much for which to be thankful – personal, professional and Presidential.  However, nothing can match the joy and excitement my husband and I felt when we recently welcomed our second baby boy, Magnus Mitchell Handelman.  Like Felix, Magnus was born via a gestational surrogate. This experience has exceeded all expectations, taught us a great deal about generosity and gratitude, and established a relationship that will last a lifetime.”

Elizabeth captured the hearts of many following her honest account of her own battle with infertility and her and her husband’s decision to turn to surrogacy for the birth of their first son, Felix.  Elizabeth quickly became a role model for those looking to build families of their own through surrogacy with her sensitive approach to infertility and her decision to speak so openly and honestly about her own journey to parenthood through surrogacy.

Earlier this week, Elizabeth went on to say “I am also so very thankful to our family and friends for their support throughout this process, as well as the Center for Surrogate Parenting for helping make all this possible.  I now turn my attention to managing two boys under two. For which I am thankful.  And all their poop. For which I am less thankful. Wish me luck”.

Celebrity endorsement of surrogacy by people like Elizabeth continues to help raise the profile of surrogacy.  Elizabeth has publicly given an honest and positive experience of the process and the joy it has brought to her and those around her.  Her story helps to give hope to others battling infertility and shows that surrogacy can deliver the life-changing gift of a child.

Three reasons why surrogacy can go wrong

Surrogacy offers hope of a much wanted family to many.  It can bring immense happiness and joy.  However, it can be a risky business and not all experiences are positive.

Your surrogate fails to give valid consent

A landmark legal case in the English High Court decided earlier this month, D and L (Minors) (Surrogacy) 2012, illustrates the problems that can happen when a surrogate mother fails to co-operate and relinquish her legal status for the child.  In D and L, a  UK gay couple applied for parental orders for their twin boys, conceived with the help of an Indian surrogate mother through a clinic in Hyderabad, India.  They never met their Indian surrogate mother, dealing instead with the Indian clinic directly.  The couple were unable to obtain signed forms from their Indian surrogate mother consenting  to the grant of parental orders to enable them to become the twins’ legal parents under UK law. Their Indian clinic refused to help secure their surrogate’s written consent and the couple were unable to trace her themselves after the twins’ birth.  All they received was a package in the post, containing a single sheet of paper with an obscene gesture on it.

The couple did everything they could to comply with UK legal requirements and they were badly let down by their clinic. Following complex court proceedings, the judge eventually granted them parental orders and dispensed with the requirement for the legal consent of their surrogate who could not be found.  The judge did, however, issue a warning that future intended parents should learn the lesson that clear lines of communication with their surrogate are established to ensure they can obtain the necessary consent after the six week cooling off period post birth.

Your surrogate has a change of heart

Although rare, a surrogate mother sometimes has a change of heart and decides she wishes to keep the baby.  This can happen for a variety of reasons and if a dispute arises, it creates difficult and challenging legal proceedings and the court will make a decision in the best interests of the child.  As surrogacy agreements are not legally binding in the UK, this creates tension between the rights of surrogate mothers and intended parents.

The pregnancy is unsuccessful

Sadly, not all surrogate pregnancies result in a live birth.  This can be devastating for all involved and it raises difficult issues.  This can hit home even harder in circumstances where intended parents have already had a long and difficult fertility journey.

With so many risks, there is no substitute for obtaining expert legal advice, working with reputable clinics and agencies and maintaining direct links with the surrogate throughout the process.

Mother in surrogacy case fights legal battle for maternity rights

An intended mother from Kent is taking legal action against the Secretary of State for Work and Pensions for the same maternity rights as adoptive parents.

The woman has taken her case to the High Court arguing that she has been discriminated against under The Human Rights Act.  She is arguing that the Government has failed to ensure respect for intended parents’ private and family life in surrogacy cases and that the Government has a positive obligation to avoid discrimination.

The woman and her husband conceived with the help of a surrogate and IVF last year.  When she approached her employer for information about maternity rights and entitlement, her employer advised her that they were under no legal obligation to allow her time off work to care for her child, although they finally offered her a year’s unpaid leave as a gesture of goodwill.

The woman then contacted her local MP, who forwarded her request for help with obtaining paid maternity leave to the Secretary of State for Work and Pensions.  The Department of Work & Pensions is understood to have refused to help saying that maternity benefits were related to “time off in the later stages of pregnancy and [to] prepare for, and recover from, childbirth in the interests of health and that of their baby”.  The woman queried their response highlighting that leave is given for adoptive parents.

Sadly, having accepted the offer of unpaid leave, the woman was made redundant shortly after the birth of her baby son.  As she did not qualify for maternity leave, her unpaid leave was not legally protected.

Parents of surrogate born children should have the same legal rights and protection as other parents.  The current lack of legal protection can cause immense hardship for intended parents, who can face financial difficulties and worries about job security or even job loss.  This sends out a worrying message that parents and children born through surrogacy are second class citizens and this needs to change.  Current surrogacy laws in the UK are outdated and there needs to be a root and branch overhaul to make them fit for the twenty first century.

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.

 

The legacy of Jill Hawkins, the UK’s most prolific surrogate mother

Jill Hawkins announced this week that she plans to retire from her role as a surrogate mother in the UK.   Jill, a 48 year old legal secretary from Sussex, has given birth to ten surrogate babies and given unimaginable joy to the childless couples she has helped over the last twenty years.

Jill’s legacy puts surrogacy in the spotlight again, at a time when there has never been greater debate about the the practice of surrogacy around the world.  There continues to be strong demand for surrogacy and Jill’s commitment and dedication, as the UK’s most prolific surrogate mother, gives real and meaningful insight into the practice.  Her views stand as clear affirmation of the positive benefits surrogacy can bring to both surrogate mothers and childless couples alike and her views paint an altogether different picture from much of the recent negative coverage, particularly of Indian surrogacy which has once again raised concerns about exploitation, ‘baby buying’ and organized  ‘baby farms’.

In an interview with The Telegraph this week, Jill said “I love doing this.  I meet amazing couples who are heartbroken and I want to make them happy.  It will be hard to walk away”.  Interestingly, she says of foreign commercial surrogacy “I can understand why most women in this county might find the idea of an organized baby farm abhorrent.  But I don’t have a problem with it.  These women are host surrogates, they aren’t using their own eggs.  I know from personal experience that it’s perfectly possible to detach yourself and not feel as though it’s your baby”.

She said of her own motivations, “It’s hard for someone who really longs for a baby to understand that I don’t, but this whole journey began because I personally wanted to experience pregnancy, not be a mother”.  She also tellingly and poignantly said “People talk about the gift of life, but surrogacy has saved mine so many times. It has given me purpose, a vocation that brings happiness.  I become part of a couple’s life and, if I’m honest, it’s been a way of distancing myself from my own life, my own problems. The newspapers called me a baby factory and said I got depressed because I gave up my babies.  But they weren’t mine – having them was the best thing I’ve ever done”.

As a lawyer who practices in the field of fertility, parenting and surrogacy law, I often get asked about the reasons why a woman would want to offer herself as a surrogate mother and carry a pregnancy for someone else.  Many intended parents worry that a surrogate mother will change her mind and want to keep the baby and the fact that surrogacy agreements are not enforceable in law in the UK as a matter of public policy.  Those battling infertility are often understandably concerned that their longed for and much-wanted baby might not end up in their care and that they might somehow be held to ransom by a surrogate mother, with little or no legal rights of their own.  Jill’s legacy and views stand as testament that many surrogate mothers want to help someone else achieve their dream of parenthood, and that they are motivated by a personal enjoyment of pregnancy and a strong sense of altruism.

I met Jill in person, when we were both interviewed on BBC Breakfast TV in January 2011.  Jill was forthright, upfront and eloquent about her experience and role as a surrogate mother in the UK.  She was proud of her contribution and legacy and her passion and dedication as a surrogate mother was palpable.  Jill’s experience shows that surrogacy is not a one-way street that favours intended parents and exploits surrogate mothers. Jill’s experience shows that surrogacy is a complex, rewarding and deeply personal experience that creates a life-changing legacy in the form of a baby.  It brings joy, a much wanted-baby and a sense or purpose.  It also gives childless couples the opportunity to have a genetic child of their own.

That said, surrogacy can raise complex legal issues and problems, particularly in cases of foreign surrogacy and on occasions when domestic surrogacy agreements  breakdown.  English law dictates that the surrogate mother is always the child’s legal mother at birth and her consent and co-operation is required for intended parents to obtain full legal parental status for the child by way of a parental order.  A surrogate mother is therefore at the heart of the process in every sense.

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