Posts Tagged ‘surrogacy’

BBC Radio London Interview: Solo Father Through Surrogacy Awarded Adoption Order

Monday, March 9th, 2015

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.

To find out more about surrogacy law in the UK contact me by email Louisa.ghevaert@michelmores.com or call +44 (0)207 7886382.

BBC World Service Interview: Banning Commercial Surrogacy in Thailand

Tuesday, February 24th, 2015

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

Monday, November 3rd, 2014

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

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”.

Chambers and Partners UK 2015: says about Michelmores Family and Fertility Law Team

The specialist Family and Fertility Law Team at Michelmores LLP is said to have a “strong reputation for advising clients on high value matrimonial finance matters and a range of children law matters.  Notable specialist expertise in surrogacy, adoption and child abduction matters, as well as issues arising from same-sex relationships”.

If you would like more information about fertility, parenting or family law please contact me by email Louisa.ghevaert@michelmores.com or by telephone +44 (0)207 788638.


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.

 

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.

Elizabeth Banks welcomes second surrogate son

Friday, November 16th, 2012

Hollywood actress, Elizabeth Banks, 38, has hit the headlines again this week following the announcement of the birth of her second surrogate born son.

Baby Magnus joined older surrogate born brother Felix, aged 20 months, at her home earlier this week.  Elizabeth said “As 2012 winds down and Thanksgiving approaches, I have much for which to be thankful – personal, professional and Presidential.  However, nothing can match the joy and excitement my husband and I felt when we recently welcomed our second baby boy, Magnus Mitchell Handelman.  Like Felix, Magnus was born via a gestational surrogate. This experience has exceeded all expectations, taught us a great deal about generosity and gratitude, and established a relationship that will last a lifetime.”

Elizabeth captured the hearts of many following her honest account of her own battle with infertility and her and her husband’s decision to turn to surrogacy for the birth of their first son, Felix.  Elizabeth quickly became a role model for those looking to build families of their own through surrogacy with her sensitive approach to infertility and her decision to speak so openly and honestly about her own journey to parenthood through surrogacy. To read my previous article about Elizabeth Banks in magazine Fertility Road entitled Surrogacy and the Celebrity factor click here.

Earlier this week, Elizabeth went on to say “I am also so very thankful to our family and friends for their support throughout this process, as well as the Center for Surrogate Parenting for helping make all this possible.  I now turn my attention to managing two boys under two. For which I am thankful.  And all their poop. For which I am less thankful. Wish me luck”.

Celebrity endorsement of surrogacy by people like Elizabeth continues to help raise the profile of surrogacy.  Elizabeth has publicly given an honest and positive experience of the process and the joy it has brought to her and those around her.  Her story helps to give hope to others battling infertility and shows that surrogacy can deliver the life-changing gift of a child.

If you would like to discuss your situation in more detail or you would like more information about the legalities of  UK surrogacy 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.

Mother in surrogacy case fights legal battle for maternity rights

Wednesday, September 26th, 2012

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.

If you would like more information about surrogacy law or you would like to discuss your situation in more detail please contact me by email 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.