Posts Tagged ‘Indian surrogacy’

International Surrogacy Law: Time Limit for parental order

Friday, October 3rd, 2014

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”.

If you would like to discuss your situation or you would like more information about UK surrogacy law please contact me by email Louisa.ghevaert@michelmores.com or call +44 (0)207 7886382.

Louisa Ghevaert joins Michelmores

Monday, August 25th, 2014

I’m delighted to join Michelmores Solicitors as a partner to head up a specialist fertility, family and parenting law practice. Michelmores have offices in Chancery Lane in London, Bristol and Exeter.

I can be contacted by email louisa.ghevaert@michelmores.com, by telephone +44 (0)207 7886382 or visit www.michelmores.com.

My award-winning, innovative and pioneering legal practice includes international and UK surrogacy, donor conception, co-parenting, fertility treatment law, posthumous conception, inter-country adoption, divorce and finances, cohabitation and complex family and children law.

I’m ranked as a leading lawyer in fertility and family law by Chambers & Partners UK 2014, which says ‘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”.’ I’m also ranked as a leading expert by The Legal 500 UK 2013.

I’ve represented fertility patients, parents and intended parents in numerous well known UK fertility law cases including, embryo storage and surrogacy disputes, landmark applications for parental orders in the English Family Court following commercial surrogacy and disputes over NHS fertility treatment funding.

My specialist fertility and family law practice was High Commended at The Law Society Excellence Awards 2013 in the Category of Business Development and Innovation.  I was also shortlisted at The Family Law Awards 2013 in the Category of Most Innovative Family Lawyer of The Year.

I’m joined by Rachel Cook, a leading authority on adoption and children law.  Rachel’s specialist expertise brings added depth to the fertility, family and parenting team at Michelmores.  Rachel is a member of the British Association of Adoption and Fostering Legal Group Advisory Committee, a member of the Department of Education Adoption Stakeholder Group, an Independent Panel Chair of a Local Authority Adoption Agency and a trustee to a large Voluntary Adoption Agency.

 

Maternity leave granted in surrogacy cases

Friday, December 21st, 2012

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.

If you would like to discuss your situation in more detail or you would like more information about surrogacy, fertility, family or parenting law please contact me by email louisa.ghevaert@michelmores.com.

Three reasons why surrogacy can go wrong

Friday, October 12th, 2012

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.  If you would like to discuss your situation in more detail or you would like more information about surrogacy law, a parental order or what to do in the event of a surrogacy dispute please email me louisa.ghevaert@michelmores.com.

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

Friday, September 7th, 2012

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.

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

Indian surrogacy: draft law finalised to bring in regulation

Tuesday, July 17th, 2012

For the first time, The Indian Government has finalised draft legislation to regulate the rapidly expanding Indian surrogacy sector.  At present, there are no surrogacy laws in India and surrogacy is neither legal nor illegal.  It is understood that the Indian Government is moving quickly to introduce legal regulation and The Assisted Reproductive Technology Regulation (ART) Bill is due to come before the Winter Session of the Indian Government.

There are currently believed to be around one thousand fertility clinics in India, although the actual number is unclear as there is no official supervisory body.  It is estimated that there were approximately two thousand surrogate births in India last year, with around half of these believed to have been born to British intended parents.  Indian authorities now believe the Indian surrogacy sector is worth as much as £1.5 billion each year and that it continues to grow rapidly and needs regulation.

The Bill seeks to ban foreign intended parents from entering into a surrogacy arrangement in India if surrogacy in prohibited in their homeland (which will catch many European nationals).  It also requires foreign intended parents to provide an undertaking that their surrogate born child will be entitled to foreign citizenship from their home country.  This is designed to stop the birth of surrogate born children in India who are stateless (since they are not currently recognized as Indian citizens) and who cannot then navigate a safe legal path home with their intended parents.

The Bill also requires foreign intended parents to retain a local guardian to support the surrogate in their absence.  If the intended parents do not assume care of the child after the birth, the child will then be granted Indian citizenship and the guardian will then be able to arrange his/her adoption in India.  This is designed to stop cases where surrogate born children have been born legally parentless in India due to an international conflict of law and intended parents have either struggled to get home safely with their child or they abandoned the child altogether.

The Bill also restricts surrogate mothers to those aged 21 to 35 years, with a cap of five successful live births in her lifetime including the births of her own children. Overall, the Bill’s aim is to support the rights of surrogate born children, surrogate mothers and intended parents and bring about legal regulation with criminal sanctions for those who breach the law. This demonstrates once again that surrogacy law and practice remains a fast moving area and this is something to watch in the months ahead as we wait to see what the end result will be.

If you would like more information about the legal issues associated with an international surrogacy arrangement or you would like to discuss your situation in more detail please email me louisa.ghevaert@michelmores.com.

The intersection of fertility and family law

Tuesday, June 12th, 2012

I was delighted to attend Family Law’s annual drinks party in central London last night following my specialist contribution to The International Family Law Practice Second Edition (March 2012).  The evening was very well attended by judges, barristers, lawyers, specialist experts and members of Jordans Publishing group who came together to celebrate the launch of a number of new publications in the arena of family, children and parenting and fertility law.

For the first time, The International Family Law Practice includes a specialist chapter on surrogacy law which I co-authored with David Hodson, partner at The International Family Law Group and a deputy district judge.  This leading practitioner textbook known as ‘the Grey Book’ in legal circles provides comprehensive coverage of the complex and rapidly developing area of international family law and its intersection with assisted reproduction law in the form of international surrogacy.

If you would like more information about the legal issues associated with surrogacy in the UK or international surrogacy please email me louisa.ghevaert@michelmores.com.

International surrogacy in India: an unregulated market

Tuesday, May 29th, 2012

The unregulated Indian surrogacy market could be worth as much as £1.5 billion a year and growing, according to Indian authorities.  It is believed there are up to 1,000 Indian clinics offering surrogacy and fertility treatment services to international intended parents through a combination of IVF, egg donation and surrogacy.

Demand for surrogacy in India continues to rise, with increasing numbers of British people travelling to India to have a much wanted baby in light of the legal restrictions and perceived uncertainty associated with the process in the UK.  British intended parents willing to travel to India for surrogacy come from all walks of life and include both  heterosexual and same-sex couples.  Many have turned to surrogacy having become concerned about the difficult and complex procedure to adopt and foster in the UK.

The Indian government has carried out a study looking at ways to introduce legislation to regulate surrogacy in India.  Proposals have been drawn up to introduce safety standards, prohibit sex selection, prevent women able to carry their own pregnancy from undertaking surrogacy and establish a register of clinics with a regulatory body to supervise and enforce standards. The  proposals would also require intended parents to be able to confer their own citizenship upon their surrogate born baby automatically at birth in an attempt to prevent further cases of babies being born stateless and parentless due to an international conflict of law. However, legislation remains in draft and it could take many years before it becomes law.

For those experiencing infertility or same-sex couples, surrogacy can deliver hope and a much wanted child.  However, international surrogacy is fraught with complex legal issues and potential pitfalls.  There is a public policy ban against commercial surrogacy in the UK and egg donors can only be paid £750 for expenses and this causes an international conflict of law when British intended parents enter into a commercial surrogacy arrangement and conceive with the help of a commercial egg donor in India.  Law in the UK does not automatically recognise an Indian birth certificate naming intended parents as their surrogate born baby’s parents and they currently need to undertake a complex parental order application in the English court to secure parental rights in the UK.  Intended parents must also have a viable immigration action plan to ensure they can obtain the right travel papers and clearance to get their baby home safely to the UK after the birth.  In the absence of this, they risk their baby being left marooned abroad and facing a difficult and complex legal battle with the British Home Office.

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

Surrogacy: what motivates its practice?

Tuesday, March 27th, 2012

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.

If you would like more information about the legal issues associated with surrogacy contact me by email louisa.ghevaert@michelmores.com.

Indian surrogate born twins granted French civil status

Friday, March 9th, 2012

Despite a legal ban on surrogacy in France, the Court of Appeal in Rennes has recently upheld a previous ruling to give French civil status to twins born to a French couple following an Indian surrogate arrangement.

This ruling is in stark contrast to a separate case last year where the French Supreme Court denied civil status to twins born following a US surrogacy arrangement. The Court of Appeal’s recent decision in Rennes was made on the basis that although they could not validate the surrogacy agreement, they could grant the twins civil status relying on article 47 of the French civil code (even though similar arguments in the French Supreme Court were unsuccessful last year). This judgment placed the best interests of the twins at the heart of the decision, although it is still unclear if this marks a change in attitudes towards surrogacy law and practice in France as a whole.

International surrogacy arrangements continue to raise complex legal issues that challenge law and policy around the world.  Many countries prohibit surrogacy or legally restrict the practice of surrogacy.  International surrogacy arrangements often create complex international conflicts of law that can leave surrogate born children stateless with no citizenship anywhere in the world. If you would like more information about the legal issues associated with surrogacy contact me by email louisa.ghevaert@michelmores.com.