The National Institute for Health and Clinical Excellence (NICE) defines infertility as failing to get pregnant after two years of regular unprotected intercourse. Infertility is the commonest reason why women aged 20-45 visit their GP (aside from pregnancy).
Infertility is currently estimated to affect one in six couples in the UK (about 3.5 million people) at any one point. If you add to this the number of single people and same-sex couples looking to conceive (many of whom are not infertile but seek to rely on fertility treatment to conceive) and the scale of infertility, demand for assisted conception and reliance upon fertility law increases significantly.
Reasons for infertility and demand for fertility treatment
There are many reasons associated with infertility and demand for fertility treatment, including, cancer, gynaecological problems, low sperm count, unexplained infertility, women delaying having a family until later in life (perhaps to establish a career), second time relationships, inability to find the right partner with whom to start a family, relationship breakdown, decision to become a solo parent, becoming a known donor or co-parent, gay and lesbian parenting.
Fertility treatment options and success rates continue to improve as medical technology develops. Greater awareness and social acceptance of fertility treatment, families created through assisted conception outside heterosexual marriage, celebrity endorsement and media coverage encourage increasing numbers of people to build families in this way. Infertility, sexual orientation or single status is no longer necessarily a bar to having a much wanted family.
Fertility law and treatment
Fertility law and fertility treatment do not always sit comfortably with each other in the UK. Despite the overhaul of fertility law in the UK in 2008 (the first in 20 years), it is still not entirely joined up with the demand for, and creation of, many modern day families through donor conception, surrogacy, co-parenting and known donor arrangements.
Whilst improvements were introduced to donor conception law in 2008, difficulties remain. Lesbian mothers now both become their child’s legal parent at birth and are named as such on their child’s birth certificate as civil partners or through nomination of the non birth mother as second legal parent using the appropriate forms at a UK licensed fertility clinic. However, legal problems can arise for non civil partnered lesbian couples conceiving by privately arranged artificial conception at home, conferring unwanted legal parenthood and financial responsibility upon a known male donor. As lesbian civil partners, they also automatically oust the legal parenthood status of a male co-parent (and biological father), which can upset the desired family dynamic and structure.
Solo mothers must take particular legal care if they conceive through donor conception. For some married couples, gruelling rounds of unsuccessful IVF and treatment can place untenable strain on their marriage causing it to breakdown. Faced with a ticking biological clock, the woman may then seek donor conception treatment at a licensed fertility clinic presenting as a single woman (although she is still married). Donor conception law dictates that her husband is treated in law as the child’s father unless steps are taken to prevent this.
Single women choosing to conceive with a known donor must also beware of the legal pitfalls. If a single woman conceives by private arrangement at home, then her known donor will become her child’s legal father and become financially responsible for the child and so she will not achieve legal parental autonomy. If she conceives through known donation at a licensed clinic, she will need to take care over the legal position if she wishes to ensure her known donor will have no legal status for her child (by filling in the requisite legal forms appropriately). Donor agreements are also useful tools in any known donation case, providing legal clarity and helping to crystallize the expectations and agreement of the parties for the child (and which can also be useful evidence in the event of a subsequent legal dispute over the child).
The law surrounding surrogacy in the UK is also complex. The law confers legal parenthood upon the surrogate mother and her husband for the child and intended parents must apply to the court for a parental order in order to reassign legal parenthood to themselves and extinguish the legal status of the surrogate parents for their child. Single people cannot apply for a parental order for a surrogate born child to become the child’s legal parent. Surrogacy law was not designed to cater for international surrogacy arrangements and creates international conflicts of law which can leave children born abroad to foreign surrogates stateless and parentless with no rights to return home to the UK with their intended parents.
A significant proportion of UK society is therefore affected by infertility, fertility law and treatment. It brings with it many challenges and anyone contemplating assisted conception should take care to tackle the legal and practical issues from the start so they are well prepared for what lies ahead.
International surrogacy case Re: IJ (a child) 2011 is the latest High Court decision to be published in the UK, awarding legal parenthood to British parents who’s surrogate born child was born stateless and parentless in the Ukraine. The child, known only as IJ, was born without any citizenship anywhere in the world due to an international conflict of law – Ukrainian law regarded the British couple as the parents whilst English law treated the Ukrainian surrogate mother and her husband as the parents. The High Court granted legal parenthood to the British parents to safeguard IJ’s welfare even though they had entered into a binding commercial surrogacy arrangement in the Ukraine, which breached public policy restrictions designed to prevent commercial surrogacy in the UK.
The case contains a stark warning by English High Court Judge, Mr Justice Hedley, about the legal difficulties that overseas surrogacy can create. Mr Justice Hedley highlights the very real difficulties the British couple experienced trying to obtain immigration clearance to bring IJ home to the UK, made worse by IJ’s need for hospital treatment in the Ukraine. He emphasizes the fact that the British couple “who had done their conscientious best to act lawfully and to be prepared for all contingencies, had been mislead by some unduly simplistic advice from the Ukrainian surrogacy agency”.
Mr Justice Hedley also stresses in the judgment the critical importance of obtaining expert legal advice saying “those who travel abroad to make these arrangements really should take advice from those skilled in our domestic law to be sure as to the problems that will confront them (not least of which is immigration) and how they can be addressed. Reliance on advice from overseas agencies is dangerous as the provisions of our domestic and immigration law are not fully understood”.
This is not the first time that British people have got into legal difficulties entering into international commercial surrogacy arrangements, leaving surrogate born children legally vulnerable and stranded abroad. The case echos the case of Re X and Y (foreign surrogacy) 2009, where twins were born stateless and parentless in the Ukraine to a British couple who despite their best efforts had not been made aware of the complex legal issues associated with commercial international surrogacy arrangements. The High Court stepped in on that occasion too and awarded legal parenthood to the British couple to safeguard the twins and issued a warning about the associated legal difficulties which continue to require careful in-depth scrutiny by the High Court on a case by case basis.
International surrogacy arrangements are fraught with legal difficulties because there is no international harmonisation of surrogacy law. Foreign birth certificates and foreign parentage orders in respect of surrogate born children are not automatically recognized in the UK and intended parents must usually apply to the English court for a parental order to obtain legal parenthood and legally secure their family. As interest in surrogacy grows, with the rise of foreign surrogacy destinations including Ukraine, India and some US states, ever present media interest and celebrity endorsement by the likes of Elton John and Nicole Kidman, there has never been a greater need to understand and manage the legal issues to avoid the legal pitfalls.
I successfully acted for the parents in both Re: IJ (a child) 2011 and Re X and Y (foreign surrogacy) 2009 and to read more information visit my international surrogacy page.
An article entitled “International Surrogacy: Payments, Public Policy and Media Hype” which I co-authored has been published by Family Law in their May 2011 edition. The article examines the landmark High Court international surrogacy case of Re L (commercial surrogacy) , which attracted front page national headlines in December 2010.
The parents had entered into a commercial surrogacy arrangement with a surrogate mother in Illinois, California, leading to the birth of a much wanted child. Whilst the surrogacy arrangement was entered into lawfully in Illinois, it would have been unlawful to have entered into such an arrangement on a professional basis in the UK due to the public policy ban on commercial surrogacy. The parents successfully obtained a parental order and the case marks a legal watershed that the child’s welfare is now the court’s paramount consideration except in the clearest case of abuse of public policy.
English High Court Judge, Mr Justice Hedley, published the judgment due to the policy changes in international surrogacy and to send a clear message that intended parents need expert legal help and need to tackle the immigration and re-entry requirements into the UK before they enter into an international surrogacy arrangement.
The intense media coverage of the case brought the issue of payments into the spotlight, together with problems with existing surrogacy law in the UK, sparking debate and highlighting the apparent globalisation of the surrogacy market.
I am internationally recognised as a leading expert in UK fertility, family and parenting law with expertise covering international surrogacy and UK surrogacy, donor conception, co-parenting, embryo storage and testing, posthumous conception, children and parenting, gay and lesbian parenting, divorce and finances, cohabitation and international family law.
I am a prominent commentator on fertility law issues on television, radio and in the national press. My pioneering practice of fertility and parenting law derived from my own personal achievement of a hard won family. I have also dealt with some of the most significant fertility law cases in the UK representing parents:
In Re L (a minor) in the High Court in October 2010, marking a legal watershed ruling that the welfare of the child is decisive over the government public policy ban on commerical surrogacy except in the clearest cases of abuse of public policy.
In Re X & Y in the High Court in November 2008, being the first case in UK legal history to test the law for British parents conceiving through an international commercial surrogacy arrangement and which involved complex and groundbreaking legal issues.
Melanie and Robert Gladwin, helping them to save their frozen embryos from destruction and winning a high profile last minute change to the law in relation to embryo storage in September 2009. I was featured asThe Times’ Lawyer of The Week 1 October 2009) and Law Society Gazette Lawyer in the News (17 September 2009) as a result.
I provide expert fertility and parenting law commentary on television, radio and in the national press. I have provided advice to the BBC and written articles for BioNews, national magazines as well as leading legal journals including Family Law, International Family Law, Family Law Journal and The Review.
I am an accomplished public speaker and I regularly speak at national fertility sector events.
I have over a decade of family, fertility and parenting law experience. I have been a member of Resolution (the professional association of family lawyers) since 2003, an accredited member of the law Society Family Panel since 2005 and trained as a collaborative lawyer. I have particular expertise in complex private family and children law and heavy weight litigation often with an international element including surrogacy arrangements, acquisition of legal status and parental rights for birth and non birth parents and other significant adults, as well as issues surrounding contact, care and upbringing of a child and parental responsibility.
I was a member of the stakeholders’ Parliamentary strategy group concerned with the Human Fertilisation and Embryology Act 2008 and its associated regulations, and lobbied for legal changes on a diverse range of issues, including surrogacy and embryo storage. I submitted written evidence as an expert adviser to the HFEA’s Ethics and Law Advisory Committee, and provided detailed legal comment to the Department of Health’s 2009 consultation on proposed draft surrogacy regulations, which won changes to the law on nationality in international surrogacy situations.
I provide regular help and assistance to charities and not-for-profit organisations.
I qualified as a solicitor in 2000.