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 Current surrogacy laws in the UK are outdated and there needs to be a root and branch overhaul to make them fit for the twenty first century.
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.
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 Irish Minister for Justice, Equality and Defence has recently issued guidelines for Irish intended parents who enter into surrogacy arrangements abroad. Whilst any attempt to streamline the complex legal issues and problems associated with international surrogacy is to be welcomed, these guidelines are a far cry from a much needed root and branch overhaul of the fundamental legal treatment of international surrogacy arrangements in Ireland and the introduction of formal surrogacy legislation.
The new guidelines coincide with recent media coverage of an increasing number of foreign born surrogate babies left stranded abroad in circumstances where their Irish intended parents have no clear means of securing their safe passage home to Ireland after the birth. Whilst the guidelines do create a clearer pathway for Irish citizenship or emergency travel clearance to be granted to the surrogate born child if the intended father is an Irish citizen and biological father, this can still take many weeks or months to secure in circumstances where a DNA test and a raft of other paperwork and/or an Irish court order is also required.
The Irish surrogacy guidelines make no change to the legal position of the Irish intended mother who lacks legal status for the surrogate born child at birth. Irish law continues to regard the surrogate mother as the child’s legal mother by virtue of carrying the pregnancy and if married her husband as legal father (a position which is mirrored under English law).
Overall, the Irish surrogacy guidelines signify a need for greater legal certainty of the complex legal issues that surrogacy and assisted reproduction create. The guidelines mark a step forward but fall short of radical reform. The lack of a uniform approach to surrogacy law and practice around the world continues to create complex international conflicts of law and very real difficulties for intended parents and their surrogate born children alike. There needs to be rational international debate and consensus at its widest level about the nature and practice of surrogacy, payments, issues of enforceability and the associated international movement of children.
Sir Nicholas Wall, President of the Family Division gave judgment earlier this week awarding parental orders to a married British couple to secure the legal status of their two children in their care following an international surrogacy arrangement in India. The two children were conceived with two different Indian surrogate mothers using an anonymous egg donor and the intended father’s sperm.
The couple paid approximately £27,400 in medical and care costs, including sums of approximately £3,000 to each of the Indian surrogate mothers. The baby boy and girl were born within days of each other and are now just over a year old. Sir Nicholas ruled that the couple had acted in good faith and the amount paid to each surrogate mother was not so disproportionate that the grant of parental orders “would be an affront to public policy”. He authorised the payments made to the two Indian surrogate mothers, notwithstanding the public policy restriction against commercial surrogacy in the UK on the basis that it was in the children’s best interests to be brought up by their intended parents.
This legal judgment is the second to be published by the English court this year involving British couples who have entered into an international surrogacy arrangement in India. It follows a handful of other published cases involving British couples who have entered into international surrogacy arrangements in certain US surrogacy friendly states and the Ukraine and who successfully secured parental orders for their surrogate born children.