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.

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.

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.

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.

BBC World Service Interview: Banning Commercial Surrogacy in Thailand

I was delighted to join the debate on BBC World Service Have Your Say on Friday 20 February 2015 following the ban of commercial surrogacy in Thailand.

The programme offered varied views and experiences about commercial and altruistic surrogacy.  Gwen Robinson, Asia Editor for Nikkei Asian Review, explained background events in Thailand which led to the Thai government’s decision to ban commercial surrogacy in Thailand last week.  the programme also featured a US surrogate mother, Minette Briant, Dr Margaret Somerville, Professor and Founding Director at Centre for Medicine, Ethics and Law, Montreal, Hans Hirsh, a parent through overseas surrogacy, Natalie Smith, a parent through UK surrogacy, Dr Nayna Patel and a UK surrogate mother, Sarah Jones.

To listen to the whole interview click here.

The issues raised by surrogacy will be further debated at the Families Through Surrogacy Conference in London on 21 March 2015, where I will be a keynote speaker. For more information click here.

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”.

 

International Surrogacy Law: Time Limit for parental order

The English High Court has today published a significant legal ruling on the 6 month time limit for issuing a parental order in the English Family Court set out in s54 Human Fertilisation and Embryology Act 2008.

The President of the Family Division, Sir James Munby, has  ruled for the first time in Re X (A Child) (Surrogacy: Time limit) [2014] EWHC 3135 (Fam) that the six month time limit can in some circumstances be extended.  Sir James Munby went on to grant a parental order in respect of the child born through surrogacy in India on 15 December 2011 stating:

“Where in the light of all this does the six-month period specified in section 54(3) stand?  Can Parliament really have intended that the gate should be barred forever if the application for a parental order is lodged even one day late?  I cannot think so.  Parliament has not explained its thinking, but given the transcendental importance of a parental order, with its consequences stretching many, many decades into the future, can it sensibly be thought that Parliament intended that the difference between six months and six months and one day be determinative and one day’s delay to be fatal?  I assume that Parliament intended a sensible result.  Given the subject matter, given the consequences for the commissioning parents, never mind those for the child, to construe section 54(3) as barring forever an application made just one day late is not, in my judgment, sensible.  It is the very antithesis of sensible; it is almost nonsensical”.

That said,  Sir James Munby was careful to make clear that each case will be fact specific and he went on to state:

“I intend to lay down no principle beyond that which appears from the authorities.  Every case will, to a greater or lesser degree, be fact specific.  In the circumstances of this case the application should be allowed to proceed.  No one – not the surrogate parents, not the commissioning parents, not the child – will suffer any prejudice if the application is allowed to proceed. On the other hand, the commissioning parents and the child stand to suffer immense and irremediable prejudice if the application is halted in its tracks”.

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