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.

Louisa Ghevaert features in The Lawyer Hot 100 2018 Career Quiz

I’m delighted to feature in The Lawyer Hot 100 Career Quiz 2018 for my cutting-edge fertility and family law practice. To read the full interview click here.

The Lawyer Hot 100 “celebrates the UK’s top lawyers: the ones acting on the most significant matters, disrupting the industry with their creative flair. It tracks exceptional individuals from private practice, in-house and the Bar”.

Now in its 17th year, The Laywer Hot 100 continues to showcase legal innovation, expertise and achievements in the field of law. Fertility and family law is rapidly evolving in the UK. It creates complex legal and wider issues and is often out-paced by the needs and expectations of people building modern families using assisted conception. People’s personal and family lives are incredibly varied and this area of work requires not only  extensive knowledge of the law but also understanding of individuals’ and their many motivations, pressures and experiences.

To read more about The Lawyer Hot 100 read my previous blog piece.

Louisa Ghevaert Honoured in The Lawyer Hot 100 List 2018

I am delighted to be included in The Lawyer’s Hot 100 List 2018 for my groundbreaking work in the field of fertility and family law and to be recognised ‘as influential at a law and policy making level’.

The Lawyer states its Hot 100 2018 List ‘is not simply about who has done the most or the biggest deals…. It recognises management figures leading their firm with vision, team leaders who have sparked incredible growth … litigators on groundbreaking cases”. Individuals included in The Lawyer Hot 100 List ‘must have star quality’. Each year, The Lawyer receives many hundreds of nominations and it ‘gathers together the best lawyers in the UK – the most daring, innovative and creative’.

It is a privilege to receive this accolade and feature in The Lawyer’s Hot 100 List 2018 in recognition of my work in the legal and medical sectors. This includes my role in delivering groundbreaking expert evidence in complex medical negligence proceedings in the High Court in the case of XX v Whittington Hospital NHS Trust [2017] EWHC 2318 (QB).  This first of its kind judgment secured the first ever UK damages award for surrogacy and represents the cross-section of medical negligence and fertility law and practice in the UK.

My specialist practice transcends both the legal and medical sectors. I am a specialist contributor on surrogacy law in leading legal reference book The International Family Law Practice (Fifth Edition, December 2016-17). I am also co-author of medical reference book Reducing Risk in Fertility Treatment (First Edition, April 2015).

I remain committed to contributing to the future landscape of the law and legal services in the UK. This includes raising awareness and understanding of complex fertility, parenting and family law issues which underpin assisted conception and fertility treatment, modern families and complex medical negligence cases with a gynaecological and fertility dimension.

The Lawyer’s Hot 100 List lists specific practice areas, which identify the most outstanding lawyers in their fields. To read more click here.

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.

Louisa Ghevaert recognised as leading expert in UK fertility and parenting law

I’m delighted to be ranked by Chambers and Partners UK Guide 2015 as a leading legal expert in surrogacy, fertility and parenting law.

Chambers & Partners identifies and ranks the most outstanding law firms and lawyers in the UK and in over 180 jurisdictions throughout the world. Their Guides are trusted by clients across the globe when they need to find a reliable and capable legal expert. Chambers UK Guide covers 50 cities and counties in England, Wales, Scotland and Northern Ireland and its rankings are the result of in-depth discussions and interviews with both lawyers and clients.

Chambers and Partners UK 2015: says about Louisa Ghevaert

“Louisa Ghevaert is a recognised expert in surrogacy, fertility and parenting law matters.  She has experience in dealing with complex parenting matters, particularly those with an international element”.

This follows on from my ranking in Chambers and Partners UK 2014 edition which said “sources describe her as an expert in a very difficult and specialised area of the law – she knows her subject extremely well and gives knowledgeable and sensible advice”.

 

Fertility and family law in progress

2013 has been another busy year in terms of the practice of fertility and family law.  The law continues to evolve and face many challenges in view of the globalisation of fertility treatment, increasingly complex family building expectations and modern family life.

I was delighted to be invited to lecture at The Fertility Show at the London Olympia on 3 November 2013 on the legal issues arising from UK and international surrogacy arrangements. This was closely followed by my attendance at the American Association of Assisted Reproduction Attorneys (AAARTA) autumn conference in Charleston, South Carolina from 10 – 12 November 2013 where I delivered a lecture on European Fertility law. This follows on from my previous lectures this year on fertility and family law at the College of Medicine’s Annual Conference in London in June 2013 and at the American Bar Association’s spring conference in Alaska in April 2013. These events provide a forum to raise awareness and discuss the challenges and lessons learned by all those involved in the fertility sector.

I welcome the UK industry recognition that has been attributed to fertility law this year.  For my part, I am delighted to have been ranked as a leading lawyer in the field of fertility and family law by Chambers & Partners UK 2014 and Legal 500 UK 2013.  I was also delighted that my legal practice was Highly Commended at The Law Society Excellence Awards 2013 in the category of Business Development and Innovation and that I was shortlisted at Jordans Family Law Awards 2013 in the category of Most Innovative Family Lawyer of the Year. Industry recognition marks the rising profile attributed to fertility law and its increasing association with family law.  It also helps to raise awareness of the complex legal issues associated with fertility treatment and modern family building options.

Surrogacy continues to spark much debate around the world and challenge law and policy makers.  I provided expert evidence to the Hague in relation to its ongoing work in the arena of international surrogacy in September 2013 and like many, I await its further report next year.  There have also been several recent legal challenges in the European Court of Justice brought by intended mothers in surrogacy cases in relation to maternity rights (one brought by a woman based in the north of England). I welcome the government’s commitment to introduce maternity and paternity rights for intended parents through surrogacy in 2015 and hope this will help to alleviate the difficulties many intended parents currently face.

Fertility law and its association with family law remains work in progress. As such, there is still much work to be done.

 

Shortlisted by Family Law Awards 2013

I’m delighted to be shortlisted by Jordan’s Family Law Awards 2013 in the category of Most Innovative Family Lawyer of the Year.  This helps to further raise the profile of fertility law in the UK and its developing association with traditional family law and helps those struggling to have a much wanted family of their own.

The Family Law Awards recognise and celebrate the important work of leading family lawyers across the country.  The panel of judges includes the heads of leading practitioners bodies, journal editors and important legal figures.  Three of the awards, including ‘Most Innovative Family Lawyer of the Year’, are voted for by the general public. Please vote for me as every vote really counts.

I am committed to delivering an innovative and specialist fertility and family law service for fertility patients, children and families. This includes groundbreaking legal solutions for a variety of alternative family building options and parenting issues, including domestic and international surrogacy, donor conception, IVF, adoption, children and family disputes.

Voting for the Family Law Awards ends at midnight on Sunday 15 September 2013.   The winners will be announced at a ceremony in London on Wednesday 9 October 2013.