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.

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.

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.

Indian surrogacy: draft law finalised to bring in regulation

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.

International surrogacy in India: an unregulated market

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.

Further celebrity endorsement fuels demand for international surrogacy

Robert DeNiro and his wife Grace Hightower are the latest celebrity couple to have a baby through surrogacy.  They recently announced the birth of their baby daughter, Helen Grace.  Baby Helen is the couple’s second child, being a younger sister for their son Elliot aged 13.  Robert DeNiro has further children with his former wife and girlfriend, two of whom are reported to have been born with the help of a surrogate mother.

They follow in the footsteps of other celebrity couples including Nicole Kidman and Keith Urban, Elton John and David Furnish and Sarah Jessica Parker and Matthew Broderick. Whilst the cost of surrogacy in the US, where these celebrities are understood to have entered into their surrogacy arrangements, is far from cheap and can cost tens of thousands of dollars, celebrities are increasingly embracing surrogacy as a way of having or expanding their family and raising the profile of surrogacy across the world. Surrogacy is increasingly being viewed as a flexible family building option, particularly for those couples unable to carry their own pregnancy and same-sex couples and is often combined with the use of donor eggs or sperm and IVF.

The English family court has now endorsed a small number of international surrogacy arrangements involving British couples who have entered into  surrogacy arrangements with foreign surrogates abroad. However, any cross-border surrogacy arrangement raises a number of complex issues, reflecting the international dimension, the commercial nature of the agreement which offends domestic public policy designed to prevent commercial surrogacy in the UK, the often complicated immigration, citizenship and nationality considerations and the need to protect the best interests of the surrogate born child or children, the surrogate parents and the intended parents. The English family court continues to highlight the need for prospective surrogate parents to take great care over the relevant legal issues and ensure they obtain expert legal help and assistance so they can navigate a safe path home to the UK with their surrogate born baby after the birth and legally protect their family and parental rights in the UK.

Couple win IVF postcode lottery battle against PCT

A married couple from Portsmouth have won a  rare IVF funding victory against their local PCT following a hard-fought legal battle.  The couple have tried unsuccessfully for a baby for over three years and, despite numerous appeals, were refused funding for IVF treatment on the NHS by Portsmouth City PCT, under the umbrella of South Central, due to the husband’s child from his previous marriage. Following an unsuccessful appeal through their GP, they contacted their local MP, Ms Penny Mordaunt for help, who put the couple in touch with me as a leading expert in fertility law.

Whilst this victory is very welcome, it still leaves many people facing uphill funding battles with their PCTs, which is why I have written to the Secretary of State for Health on this matter.

There needs to be routine implementation of the NICE guidance across the board. There also needs to be greater recognition and understanding of infertility, which blights too many people’s lives and better support for people struggling to have a family and those needing to undergo IVF.

It is unfair to deny a childless woman access to IVF on the NHS if her partner has a child from a previous relationship.  This actively discriminates against women and denies them the opportunity to bear their own children and become mothers.

By introducing such stringent age restrictions, it denies younger women access to treatment who have three years of proven infertility when they will have a better chance of conceiving at a younger age.  Equally it restricts access to treatment  by women who do not actively try for a baby until later in life and who struggle to achieve three years of proven infertility.

Infertility affects one in seven couples in the UK (approx 3.5 million people). The current IVF postcode lottery, coupled with conflicting IVF funding policies between PCTs causes immeasurable heartache and distress for people when faced with the stark reality that they will not be offered the recommended number of free IVF cycles on the NHS or worse none at all.  Private fertility treatment can cost thousands of pounds which is too often beyond the reach of the average couple, particularly in the current economic climate.