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.
Resolution, the professional body for family lawyers in England, has just published a guide with which I collaborated entitled “The Modern Family (A Resolution Guide). I’m delighted to say it includes a chapter on assisted conception law, donor conception and surrogacy.
The guide deals with modern day families created through step-parenting, adoption, assisted conception, surrogacy, same-sex parenting and grandparenting. Its aim is not only to deal with the legal issues when families breakdown but to also strengthen modern families and family networks. The guide acknowledges the fast moving issues created by family fragmentation, reform, movement abroad and creation through assisted reproductive technology and provides a concise overview of the main issues and difficulties involved.
There are number of factors that motivate the practice of surrogacy around the world, including altruism, infertility, commercialism and in some cases grief. Different jurisdictions take different approaches to surrogacy law and practice in what remains an evolving area fraught with many difficulties and challenges.
Sometimes, people are motivated to turn to surrogacy through tragedy as in the recently publicised Indian case of KP Ravikumar and his wife Karthyayani. Their only son died unexpectedly of testicular cancer in January 2011, leaving behind a semen sample in case his cancer treatment left him infertile. Ravikumar and his wife recently won a court order for the release of their son’s semen which they plan to use to conceive a child through surrogacy. Their case has made headlines and brought surrogacy once again into the media spotlight.
Ravikumar, aged 59, and his wife Karthayani, aged 58, first wanted to adopt a child following the death of their son but found they were disqualified by their combined age. Motivated by their grief and sense of loss, they turned to surrogacy. They found a relative of Ravikumar who was willing to become a surrogate mother for them and they planned to sell some of their land to raise enough money to cover the costs of the surrogacy arrangement. However, their surrogate subsequently backed out following intense media publicity.
Much of the publicity surrounding this case focused on the ages of Ravikumar and his wife and their desire to have their dead son’s child. India has no formal surrogacy laws as the Assisted Reproductive Technology (ART) Regulation Bill 2010 has not yet been approved. As a result, there is no formal age bar or other legal restrictions preventing them from entering into a surrogacy arrangement.
Whilst the story is compelling in its grief and tragedy, it raises a number of complex legal issues associated with ownership of their son’s semen, parenting in later life, the best interests of the surrogate born child and the regulation of surrogacy law and practice. The lack of legal uniformity of surrogacy around the world, combined with growing demand for surrogacy and assisted conception creates a number of challenges for law and policy makers. This case aptly demonstrates the overwhelming desire that can motivate some to become parents through surrogacy when all else has failed and the complex issues it can create. Assisted reproductive technology is here to stay and this makes family building possible in ways that simply was not a reality twenty or thirty years ago.
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.
Despite a legal ban on surrogacy in France, the Court of Appeal in Rennes has recently upheld a previous ruling to give French civil status to twins born to a French couple following an Indian surrogate arrangement.
This ruling is in stark contrast to a separate case last year where the French Supreme Court denied civil status to twins born following a US surrogacy arrangement. The Court of Appeal’s recent decision in Rennes was made on the basis that although they could not validate the surrogacy agreement, they could grant the twins civil status relying on article 47 of the French civil code (even though similar arguments in the French Supreme Court were unsuccessful last year). This judgment placed the best interests of the twins at the heart of the decision, although it is still unclear if this marks a change in attitudes towards surrogacy law and practice in France as a whole.
International surrogacy arrangements continue to raise complex legal issues that challenge law and policy around the world. Many countries prohibit surrogacy or legally restrict the practice of surrogacy. International surrogacy arrangements often create complex international conflicts of law that can leave surrogate born children stateless with no citizenship anywhere in the world.
UK surrogate mother, Jill Hawkins, is pregnant again for a ninth time. Jill, a legal secretary from Brighton aged 47, is due to give birth to her ninth and tenth surrogate babies three weeks before her 48th birthday. Jill spoke of her pride of being a surrogate mother and how fulfilled she felt during pregnancy during a recent press interview.
Jill’s first seven surrogate babies are reported to have been conceived through artificial insemination using her own eggs and the intended father’s sperm. This time round, Jill conceived twins through IVF using the intended parents’ own embryos.
Jill is the most prolific surrogate mother in the UK, following Carole Horlock’s move to France after giving birth to twelve surrogate babies. Jill and I were interviewed about surrogacy law and practice on BBC Breakfast last year (January 2011).
Surrogacy is a restricted legal practice in the UK. There is a public policy restriction against commercial surrogacy and surrogacy contacts are not binding in law. The surrogate mother is treated in law as the child’s legal mother at birth (regardless of biology) and intended parents need to apply to court for a parental order to extinguish the legal status of their surrogate mother and obtain full legal parental status for their child.
Theresa Erickson, a former prominent Californian surrogacy lawyer, was last Friday sentenced to five months in prison, nine months home confinement, three years of supervised release and a $70,000 dollar fine plus restitution for her role as ring leader of what prosecutors termed an illegal international baby-selling ring. Her sentence follows the prison sentence that was delivered to her co-conspirator and Maryland lawyer, Hilary Neiman, last December. Carla Chambers, the third co-conspirator, also received five months in prison for her role and guilty plea to knowingly receiving money from an illegal enterprise.
The legacy of this case will create longstanding issues for the intended parents, surrogates and children involved. A point noted by the federal judge who stated that Erickson and her co-conspirators had tainted the birth stories of the children involved. Erickson acknowledged her wrongdoing in court and said she had lost her way.
The six year scam, which involved at least 12 fake surrogacy arrangements, stands as a stark reminder of what can happen when surrogacy and assisted reproduction goes wrong. US prosecutors delivered a statement in court stating that Erickson had been motivated by greed and that she had preyed upon people’s most basic need to have and raise a child, charging childless couples $100,000 or more to become intended parents and step into falsified ‘surrogacy arrangements’ where surrogates were already pregnant using donor embryo treatment in the Ukraine.
Assisted reproduction and surrogacy can offer hope to many people who are unable to have a child of their own. Surrogacy can deliver the reality of a much wanted child and family after years of personal heartbreak and upset. The actions of these individuals have, however, left their mark and raised questions about the control and regulation of assisted reproduction across the world and the role of the professionals involved. International surrogacy arrangements raise a number of complex legal and practical issues for intended parents and surrogates to get to grips with, in what remains an expanding and fast moving area of law and practice. This case shows that assisted reproduction and surrogacy is not without its risks and that great care is needed at all stages of the process.
Surrogacy is now a global reality and this brings significant challenges for intended parents, law and policy makers and lawyers in terms of managing the complex legal issues it creates. Surrogacy is a legal, albeit restricted practice in the UK. Surrogacy also has a unique character and identity of its own that is separate from other family building methods (including adoption).
Surrogacy is governed by assisted reproduction law in the UK, which often creates international conflicts of law when intended parents enter into surrogacy arrangements abroad. Surrogacy also has its own unique legal remedy in the UK, known as a parental order, marking it out from other mainstream areas of family law. Surrogacy, and particularly international surrogacy, is a rapidly evolving area of law and there are many legal issues and pitfalls as a result of the lack of international unification of surrogacy law and differing attitudes towards surrogacy around the world.
The International Family Law Practice (2nd Edition) features a chapter on surrogacy which I have co-authored with David Hodson, a Deputy District Judge of the Principal Registry of the Family Division and partner at The International Family Law Group LLP. Having pioneered the practice of fertility, surrogacy and parenting law in the UK and litigated the leading international surrogacy cases in the English family court, I was able to provide a valuable specialist contribution that traces the background and development of surrogacy law and practice in the UK. This major practitioner reference book provides comprehensive coverage of the international elements of English family law and marks the intersection of assisted reproduction and family law.
Later this week, San Diego surrogacy attorney Theresa Erickson will be sentenced for her part in what US prosecutors have called an international baby-selling ring. It is likely she will face a prison sentence, following her guilty plea to a wire fraud charge last August.
Ms Erickson was charged along with two others, a Maryland lawyer called Hilary Neiman and Carla Chambers, a nurse from Las Vegas. Ms Neiman was sentenced last December to one year in prison, being five months in custody and the rest under home confinement, for her part in the scheme.
The women recruited surrogates and sent them to the Ukraine where they conceived and then sourced intended parents for the unborn babies once the pregnancies were well established. Prosecutors alleged that the intended parents were falsely told that a previous surrogacy arrangement had fallen through and that they could step in for an alleged fee of $100,000 or more. It is further alleged that falsified court documents were then filed in the Californian court presenting the case as a surrogacy arrangement to obtain pre-birth orders for the intended parents. It is reported that the scheme involved at least 11 babies.
Ms Erickson was a successful and high profile US attorney who specialised in surrogacy law and who also owned a surrogacy and egg donation agency to help people become parents through surrogacy. She was herself an egg donor (resulting in the birth of twins) and a prominent commentator about surrogacy on television and radio. Her involvement in this scandal has sent shock waves through the assisted reproduction community and caused many to question her motivations and actions.
Under Californian law, intended parents must enter into a surrogacy contract with a surrogate before conception. The timing is critical. It is illegal for a woman who is already pregnant to agree to handover a baby to the intended intended parents for a fee and this is regarded as baby-selling.
The San Diego Superior Court has now tightened up its legal process and requirements to try and prevent any further cases of this nature. Whilst the vast majority of surrogacy arrangements are successful and follow due legal process, this scandal has attracted unwelcome headlines and coverage. It highlights the problems and pitfalls that can occur in an area of law and practice that lacks widespread unification or regulation. It also brings into focus the importance for intended parents to get a clear grasp of the legal issues from the outset and ensure that they have confidence in their lawyer and the other professionals with whom they work.
For those considering entering into an international surrogacy arrangement, it is important to tackle the legalities in their surrogacy destination country as well as their home country upon their return with their baby. As there is no international harmonization of surrogacy law, a Californian pre-birth order will not be automatically recognised in the UK and English law expects intended parents to apply to court for a parental order to secure legal parental rights for their child. International surrogacy arrangements raise a number of complex legal issues involving public policy and international legal conflicts of law which make any application for a parental order a significant legal exercise. This process can become even more complicated if any legal discrepencies or problems come to light along the way, such as the those highlighted in the alleged baby-selling ring.
The English High Court has issued a further judgment which once again highlights the legal problems associated with international surrogacy, both in terms of immigration arrangements and also domicile.
The case, Z and another v C and another 2011, concerned a same-sex Israeli couple who entered into a surrogacy arrangement with a clinic in India through a surrogacy agency in Israel, resulting in the birth of twins in November 2010. This followed unsuccessful attempts to conceive a child with a surrogate they were introduced to through a UK not for profit surrogacy agency after the intended parents relocated to the UK in 2008. The first applicant entered the UK as a highly skilled migrant. His and his partner’s leave to remain was renewable and could be varied to indefinite leave to remain after five years continuous residence in the UK.
The preliminary issue for the English court to determine, was whether one or both of the intended parents was domiciled in England at the time of their application, this being a prerequisite for the court to make a parental order. In giving judgment, Mrs Justice Theis, ruled “I am entirely staisfied that Z’s assertion of an English domicile is genuine, is not a misuse of proceedings or contrived for any immigration purpose. UKBA has a policy permitting entry to surrogate born children including those whose ‘parents’ intend making a parental order application and appear to satisfy the requirements for a parental order in the UK”.
The case also graphically highlights the immigration law difficulties that can arise in terms of navigating a safe path home with surrogate born babies post birth. Following the twins’ birth, the intended parents obtained Israeli passports for them. The intended parents then travelled to Israel with the twins to apply for entry clearance to the UK for them as their dependants, based on telephone advice from UKBA that the twins’ must make their application for entry clearance from their country of nationality, rather than India, their country of birth. The application was made in the alternative under the UKBA’s surrogacy policy and the Immigration Rules. The applications were refused, although their appeal was successful based on human rights arguments (Article 8). The Immigration Judge’s decision on appeal was then challenged by the Secretary of State and a further appeal was determined by the Upper Tribunal of the Asylum and Immigration Chamber in November 2011 where the further appeal was dismissed. The tribunal then gave the twins entry clearance into the UK for one year on an expedited basis and it was hoped that the twins would enter the UK by the end of the year (13 months after their birth).
Th court further stated that in this case the twins would not obtain British nationality upon the grant of a parental order, simply a capacity to be treated as the children of their parents in immigration law and to be granted leave to remain in line with their parents.
This case brings into sharp focus the complex legal problems that can arise when intended parents enter into an international surrogacy arrangement against the backdrop of complex multi-national personal circumstances.