Louise Brown (aged 33) was the first baby to be born through IVF. Louise’s mother, Lesley, pioneered the practice of IVF in the UK (and around the world) and she sadly died recently after developing septicaemia whilst being treated in hospital for gallstones. Louise and her mother were very close and Louise paid tribute to her mother in a recent media interview saying “She gave me life – and every woman the chance to be a mother” and “I don’t think I could have tried for a baby for as long as she did. I’d have given up, but she never did”.
Louise, herself now a mother, endorses IVF treatment although she admits to worrying about the consequences of scientific developments in assisted conception. She recently said during a media interview “IVF has helped millions of couples have babies. Of course I’d have had it myself if I’d needed to”. She went on to say “I’m happy for same-sex couples to use IVF to have a baby, but I don’t believe couples should be able to choose the sex or anything else for their child unless it’s for medical reasons”.
In terms of surrogacy, Louise said “I don’t have strong feelings about surrogacy – if it’s used properly it can help women who can’t carry a child. Her biggest concern, however, centres on the rising numbers of older women seeking assisted conception to become mothers. More and more women are turning to IVF and surrogacy to have a much wanted child when their attempts to conceive naturally prove unsuccessful, often later in life after they have established their financial positions, personal lives and careers. IVF can be very gruelling and surrogacy is not for the faint-hearted given the UK legal restrictions and the complex legal and logistical issues associated with international surrogacy arrangements. Louise acknowledges this growing trend but said “Children need their parents to be there, so I believe in having children young, to see as much of their lives as possible” and “I can understand why some older women might be desperate for a family if they haven’t had one, but I’d be worried about women in their fifties having a baby just because they can”.
The desire to have a baby can be incredibly powerful and deep seated and these feelings can drive people of all ages and walks of life to want to have a child. In the knowledge that assisted conception, IVF and surrogacy is a global reality and that scientific developments are improving pregnancy success rates all the time, increasing numbers of people are choosing to become parents later in life and build non traditional family structures (including solo parents, co-parenting and known donor arrangements). This brings with it all manner of additional challenges, both legally and practically.
On Monday (18 June 2012), a US federal judge in San Diego denied a claim brought by Sharp Healthcare for reimbursement of approximately $600,000 in medical costs for the medical care of seven surrogate babies delivered as a result of an international baby-selling ring.
This case follows on from the conviction of a former prominent Poway surrogacy lawyer, Theresa Erickson, earlier this year for fraud and her sentence to a 14 month term (with five months to be spent in prison) for her part in the surrogacy scam. Two others, Carla Chambers of Las Vegas and Hilary Neiman of Maryland received similar sentences for their parts in the scam as well.
The seven surrogate born babies were delivered at Sharp hospitals. Several of the babies were premature and medical costs for their care exceeded $600,000. The intended parents respectively paid between $100,000 and $150,000 for their surrogacy arrangements and believed everything was legal and that there was medical insurance in place to cover medical costs. The intended parents were then shocked and horrified when they were presented with huge medical bills and discovered these were not covered by health insurance and the illegality of their surrogacy arrangements came to light.
Sharp Healthcare entered into agreements with the majority of the intended parents and accepted more than $235,000 in payments. However, this left a shortfall of approximately $600,000 which it sought to recover from Theresa Erickson. Their claims were denied in five of the seven cases by US District Judge Anthony Battaglia. The judge ordered only a few thousand dollars of reimbursement to the remaining two sets of intended parents who had been listed in the government’s criminal case as victims (the other five sets of intended parents had not been listed as victims in the government’s case).
The outcome of this case graphically illustrates once again what can happen when surrogacy arrangements go wrong. The legal issues surrounding surrogacy are complex and even more so in cases involving international surrogacy arrangements. It is therefore critical that anyone contemplating a surrogacy arrangement fully gets to grips with the legal issues and implications from the outset and ensures they have confidence in the people with whom they work.
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.