Fertility and Parenting law team shortlisted for The Law Society’s 2012 Excellence Award in Innovation

I am delighted that my team and  have been shortlisted for the Law Society’s 2012 Excellence Award in Innovation.

This recognizes our cutting-edge, pioneering and innovative legal work helping people all over the world build families through fertility treatment, international and UK surrogacy, donor conception including known donation and co-parenting, as well as our work concerning family, children and parenting disputes.

The Law Society’s prestigious awards ceremony recognizes excellence across the legal profession and outstanding contributions from solicitors and their teams.  Winners will be announced at a black tie event on 18 October at Old Billingsgate, London.

 

Louise Brown, the world’s first IVF baby, talks about surrogacy and assisted conception

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.

International surrogacy: US judge denies restitution following surrogacy scam

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.

The intersection of fertility and family law

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.

NICE issues new IVF and fertility guidance

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 impact of infertility

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.

International surrogacy: same-sex parenting, domicile and immigration

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.

Fertility treatment is on the rise in the UK

The latest figures released by the Human Fertilisation and Embryology Authority (HFEA) show a six percent increase in the number of fertility treatments undergone in the UK  last year.

According to the HFEA’s annual report, approximately 45,200 women underwent fertility treatment in the UK in 2010, up from approximately 42,500 in 2009. The HFEA’s report also indicates that the number of fertility treatment cycles using donor eggs and donor sperm increased. The majority of women who underwent IVF treatment in the UK in 2010 were aged 37 years or under. The average age of women undergoing IVF was 35.

International surrogacy law: Bulgaria moves to legalize surrogacy

As the global surrogacy and fertility sector continues to expand, Bulgaria’s Parliament has approved a first reading of an amending and supplementary bill to the Family Code to legalize surrogacy according to a recent report by FOCUS News Agency.

Surrogacy is reported to have existed unlawfully in Bulgaria in the past according to Kalina Krumova, an MP from the Ataka party who moved the bill. Ms Krumova added that those Bulgarians who needed surrogacy would travel to other countries like the Ukraine where surrogacy is legal and that more than 270,000 Bulgarian families have reproductive problems.

Whilst Bulgaria looks to change its  law and policy surrounding surrogacy, many other countries continue to ban surrogacy or limit its practice.  This lack of legal harmonization raises complex issues and problems in law and practice for increasing numbers of people looking to build their family through surrogacy and particularly those that enter into international surrogacy arrangements.

American Bar Association hosts international fertility and surrogacy law congress in Las Vegas

I was delighted to be an invited guest speaker and moderator at The American Bar Association’s international assisted reproduction law congress in Las Vegas from 26-29 October 2011.  The conference brought together the world’s most pre-eminent experts in fertility and surrogacy law to discuss assisted conception, family building practices and law and policy across the world.

As increasing numbers of intended parents are crossing borders to access assisted reproductive technology and surrogacy programmes to build their families, there has never been a greater need for recognition and understanding of the legal issues and problems they  face.  The conference united  the world’s leading experts in fertility and surrogacy law and will help to give a much needed voice at a time when the Hague Conference on Private International Children Law has identified surrogacy as a “pressing socio-legal problem” and is investigating ways of regulating surrogacy internationally.

I was delighted to moderate an international panel of fertility law experts from the Ukraine, Greece and Brazil and for my own part give an international perspective of assisted reproductive technology law and practice.  My presentation addressed the scale of infertility, the reasons why intended parents cross borders for assisted reproductive treatment and popular foreign destinations, wider issues associated with cross-border assisted reproductive treatment, the risks and problems for intended parents travelling abroad for surrogacy and the nebulous question of whether there should be greater regulation of surrogacy law and practice.

It is estimated that one in seven couples experience problems conceiving. Intended parents cross borders to access fertility treatment and surrogacy programmes for a number of different reasons including cost, availability and cost of donor gametes and permissive legislation abroad. This raises a number of legal, practical and wider issues associated with management of donor information globally, whether there should be an internationally unified donor cap limiting the numbers of families to which a donor can donate, the wider emotional issues associated with assisted conception, management of health care costs, surrogacy law and practice, as well as citizenship and nationality and immigration law issues and protocols.

There is no international harmonization of surrogacy law, with some jurisdictions prohibiting it, others allowing it on a restricted non commercial footing and some embracing surrogacy on a commercial basis.  Surrogacy raises sensitive and difficult issues about the right to have a child and a family life, altruism, commercialism and freedom of choice. Assisted reproduction techniques now make it possible for children to be conceived and families to be created in ways that simply were not possible forty years ago.  Fertility treatment and surrogacy now has a global reach which has out-paced legislation and regulation. Until nations get to grips with these issues it is difficult to see how any form of progressive international consensus or regulation will be achieved in relation to assisted reproduction. The risk is that in the meantime international regulation of surrogacy will be introduced akin to adoption, which could limit the practice of surrogacy around the world.

Assisted reproduction lawyers play a vital role in educating intended parents about the legal issues and pitfalls when they cross borders for fertility treatment and surrogacy.  The American Bar Association is to be congratulated in hosting this international conference and creating a united voice of the world’s leading fertility and surrogacy law experts .  As a group we must continue to engage with law and policy makers across the world as they struggle to get to grips with the increasing demand for assisted reproduction and the implications and regulation issues this creates.