Posts Tagged ‘international surrogacy lawyer’

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.

Fertility and family law in progress

Wednesday, December 4th, 2013

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.

 

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.