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.
The Queensland government has announced that it plans to change surrogacy law to prevent single people, gay couples and straight couples who have lived together for less than two years from undergoing surrogacy. Existing altruistic surrogacy legislation was only passed in February 2010, de-criminalising altruistic surrogacy although commercial surrogacy remains a crime.
The Queensland Premier Campbell Newman said shortly before his election in March that his party would not make any changes to surrogacy law. He has subsequently said this was a mistake and that they intend to change the law and restrict surrogacy to longstanding heterosexual couples only. These proposed changes will effectively criminalise altruistic surrogacy arrangements for single people, gay couples and heterosexual couples who have lived together for less than two years and they will face a prison sentence of up to three years if they have a child through surrogacy.
These proposed changes represent a significant government u-turn and a worrying step backwards in terms of the rights of single people and gay and straight couples to access surrogacy. These proposed changes will create additional worry and heartache for many prospective parents, who will either seek to keep ‘below the radar’ with their family building plans or move to a state with less restrictive and discriminatory laws. Interest in surrogacy continues to grow around the world. Growing numbers of intended parents are already crossing borders to access surrogacy in the face of restrictive laws at home and these numbers look set to increase in light of these proposed changes to the law in Queensland.
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.
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.
The National Institute for Health and Clinical Excellence (NICE) has today issued new draft guidance concerning the provision of fertility treatment and IVF on the NHS. The new proposals recommend that the age limit for women undergoing IVF treatment on the NHS should be increased from 39 to 42 years. The proposals also recommend for the first time that same-sex couples should qualify for fertility treatment if they have undergone six cycles of artificial insemination at a private fertility clinic. Furthermore, the proposals recommend that women should be offered fertility treatment on the NHS after two rather than three years of unsuccessful trying for a baby.
NICE guidance on the provision of IVF treatment on the NHS hasn’t been updated since 2004. It is high time this is achieved to reflect better treatment success rates, equality legislation and greater demand for IVF by women aged 35 upwards. However, NICE guidance is not mandatory and it remains to be seen whether these new proposals will bring about greater recognition of IVF as a legitimate clinical need or greater fairness in terms of access to fertility treatment on the NHS across the country. In the meantime, fertility patients continue to battle with the reality of the postcode lottery and varying restrictions imposed by PCT’s who continue to flout the guidance.
Infertility affects one in six couples across the UK from all walks of life. The IVF postcode lottery causes great distress for people when faced with the reality that they will not be offered the recommended number of free IVF cycles on the NHS or worse none at all. This can lead to relationship breakdown and depression which can blight people’s lives and cause long term misery and hardship. Private fertility treatment can cost thousands of pounds which is too often beyond the reach of couples, particularly in the current economic climate. With an increasingly ageing population, we need to do all we can to increase the birth rate in the UK to mitigate the increasing economic burden placed upon younger generations of society.
The owner of a US surrogacy agency in Modesto pleaded not guilty on Monday to criminal charges of fraud and money laundering. Prosecutors allege she stole more than $2 million from clients who had paid money into trust for surrogacy fees and egg donation.
US authorities allege that the owner of SurroGenesis, Tonya Collins, encouraged clients to invest their money with a personal property escrow company which purported to be independent and that she concealed her ownership of the company and created fictitious staff identities to make it appear independent. Prosecutors allege that she then transferred client money to personal accounts to pay for a lavish lifestyle including holidays, homes and cars.
Judge Gary Austin is reported to have indicated that if found guilty, Ms Collins could face up to 20 years in prison and a $250,000 fine for mail fraud and wire fraud, up to 30 years in prison and a $1 million fine for bank fraud and 10 years in prison and a $250,000 fine for money laundering.
There are no centralized laws governing the practice of surrogacy in the US and this case follows on from the recent prosecution of an international baby-selling ring headed by a prominent former US surrogacy attorney. There is also no international harmonization of surrogacy law around the world, with each jurisdiction taking its own approach to surrogacy and this can create a legal quagmire for intended parents. Whilst such cases are unusual, it highlights the risks associated with assisted conception and brings into focus once again the importance for intended parents to vet the professionals they choose to work with and ensure they have a clear understanding of the legal framework and issues relevant to their family building plans.
Advances in fertility treatment have outstripped the law and this increasingly challenges traditional concepts of parenthood. For those who have struggled for years with infertility or never thought they could have a child, they can now conceive using a sperm donor, an egg donor, a surrogate (or a combination of these). This creates a key question: who is a parent?
Traditionally, parenthood followed biology. The woman who gave birth to the child was legal mother and her husband was the presumed legal father. However, it is now a far more complex question in assisted conception cases. As growing numbers of people embrace fertility treatment, cross borders, engage foreign surrogacy organizations and conceive with donor eggs and sperm the concept of parenthood can seem confusing and unclear. This challenges existing law and policy and has resulted in a a legal jigsaw puzzle that many struggle to make sense of.
Assisted reproduction and modern family structures challenge traditional notions of family. Increasing numbers of people are creating families through surrogacy, using a known donor who may have ongoing involvement with the family, through co-parenting arrangements or embracing family life as a solo parent. This raises questions about the legal status and role of the individuals involved and whether parenthood should be based on biology, intent, pregnancy and birth or social parenting.
The structures of modern families are changing and assisted reproductive technology is developing at a fast pace. The law has not kept pace with these developments and there needs to be greater understanding of the different pieces of the jigsaw that make up family building through assisted conception, sperm and egg donation and surrogacy. Only then, can we effectively tackle the question of parenthood and put effective law and policy in place.
If you would like to discuss your personal situation in more detail or you would like more information please email me firstname.lastname@example.org.
Infertility fears are increasingly common as more and more people think about their fertility and worry about starting a family. Infertility is a difficult issue and a diagnosis of infertility can affect you deeply.
Whilst some will take a proactive approach following a diagnosis of infertility, others will struggle to come to terms with this. Recent research shows that involuntary infertility has a big impact on self-esteem and emotional well-being in both men and women. Our sense of identity, our masculinity and femininity are linked to our fertility. People can find it difficult to discuss the problems they might have (or fear they might have) and it can put strain on relationships and affect performance at work.
For those people whose fertility levels do not improve through lifestyle changes, it may mean they will need to turn to assisted conception. Assisted conception can take many different forms, including IVF, ICSI, egg and sperm donation and surrogacy. The range of choice can seem overwhelming and it can be difficult to know where to start, or perhaps to reassess the situation if fertility treatment is unsuccessful.
If you are planning a family through fertility treatment or surrogacy it is equally important to get to grips with the legal issues so that you can ensure you properly protect your parental status and you can legally secure your family unit. Assisted conception, complex personal circumstances, an international dimension, donor conception, solo-parents, co-parents, same-sex parenting and known donation can all raise complex legal issues.