Gamble & Ghevaert

Archive for April, 2010

Have your say – major HFEA review of donation policies

Monday, April 26th, 2010

A message from the HFEA:

Over the summer and autumn of 2010 the HFEA will be reviewing a number of its policies relating to sperm, egg and embryo donation. The aim of the review is to ensure HFEA policies facilitate safe and effective donation while protecting the interests of people affected by donation – donor conceived people, donors, parents and recipients. A public consultation will take place between October and December this year with final decisions being made in March 2011. The policies to be reviewed include:

· the number of families donors can donate to

· expenses and compensation donors can receive for donation

· donation between family members

· the restrictions which donors can place on the use of their gametes or embryos


These policies will have an impact on future donors, recipients and donor conceived people. It is therefore crucial that these groups have the opportunity to feed into the review. If you’re a donor-conceived person, parent of a donor-concieved person, a donor, or have considered donation, the HFEA would like to hear your views.

If you would like to participate in this review, by providing your views on donation policies, please email with your name, contact details, and an indication of how you are affected by, or interested in, donation (e.g. donor, have considered donation, general public)

This information will us to send you information relevant to your interest in the donation review. We will be seeking views through a variety of methods, including a written consultation document, consultation events, focus groups and one to one interviews. Confidentiality will be maintained throughout the consultation and you will be given the opportunity to contribute your views anonymously.

You can find out more about donor conception law from the our website.


Completion of the UK’s new fertility laws welcomed today

Tuesday, April 6th, 2010

The last piece of the government’s flagship Human Fertilisation and Embryology Act 2008 came into force today, completing the first major overhaul of the UK’s fertility laws in twenty years. The HFE Bill is a major piece of government legislation which has updated the UK’s 1990 laws to bring them into line with 21st century scienific and social advances. It has introduced important changes including:

* new rights for lesbian partners to be recognised as parents after sperm donation,

* the abolition of clinics’ obligation to consider a child’s need for a father before offering fertility treatment,

* the broadening of the extended storage rules for gametes and embryos, allowing more people to store precious embryos for longer,

* new rights for donor conceived people to make contact with genetic siblings,

* a clearer legal framework for preimplantation genetic diagnosis, and

* the widening of surrogacy laws to allow same sex and unmarried couples to apply for legal parenthood.

The Act has been brought into force in stages, with the new parenthood rules on donor conception in force first for conceptions after 6 April 2009 and the bulk of the Act in force on 1 October 2009. The final pieces of the jigsaw, which came into force today, are the changes to surrogacy law, allowing same sex and unmarried couples to apply to court to become the parents of a surrogate born child and updating the court rules and procedures. This completes the implementation of this major piece of government legislation, rather fittingly today, the day on which it has been announced that this Parliament will be dissolved.

We are proud to have played a role at the forefront of these important legal changes, championing the position of fertility patients and same sex parents. Our contributions to the public and Parliamentary debate and to the legal changes include:

* Helping to secure the important new rights for same sex parents (work for which Natalie was nominated by gay rights organisation Stonewall as their Hero of the Year 2008, named by Diva magazine as one of the UK’s most influential gay women, and invited to 10 Downing Street to meet the Prime Minister last month);

* Winning a last minute government U-turn on embryo storage which allowed surrogacy patients to save embryos from destruction and store them for an extended period;

* Lobbying for changes to surrogacy law, which were debated in Parliament (but sadly not adopted) – we are continuing to campaign on this;

* Winning improvements to nationality law for British parents of children born through surrogacy abroad following our contribution to the Department of Health’s consultation on the new parental order regulations.

Find out more about the legal changes on our website, relating to donor conception, surrogacy and fertility treatment.

Today’s Guardian – Couples who pay surrogate mothers could lose right to raise the child

Tuesday, April 6th, 2010

By Denis Campbell, health correspondent. Published in the Guardian, Monday 5 April 2010

Childless couples who acquire a baby using a surrogate mother abroad risk not being recognised as its parents in Britain if they flout British law by paying fees, fertility lawyers have warned.

Such payments, which can be as high as £30,000, could lead to those who have made them being refused permission by the high court to become the child’s legal parents, specialist solicitors say. The Human Fertilisation and Embryology Act 1990 allows couples entering into deals with a surrogate mother overseas to pay her only what is allowed here – “expenses reasonably incurred”, such as compensation for time off work, medical bills and living expenses. But lawyers handling such cases have told the Guardian a growing number of couples are embarking on international surrogacy in places such as India, the US and Ukraine, and that many of them are in effect flouting the law by paying whatever is needed to get a child. This could cause serious problems for them and the children as the high court may not grant a parental order.

More couples have sought legal advice about international surrogacy in the past two years, fertility lawyers say. Finding a surrogate in the UK is difficult, and many see surrogacy abroad as their last chance, said Miranda Baker, a lawyer in the field. Lawyers predict that more people will pursue such deals after tomorrow, when the law changes to allow unmarried and same-sex couples to apply for parental orders.

Last November Mr Justice Hedley heard that a Mr and Mrs A had paid $23,000 (£15,000) to acquire twins from a surrogate mother in California. Mr A was the biological father. His sperm had been used to fertilise an egg from an anonymous donor and embryos were implanted into the surrogate. It was clear that “a significant element, although it is difficult to specify exactly what, of the $23,000 represents a payment contrary to the [law]“, he said.

Among matters of public policy the case raised was that “the court should be astute not to be involved in anything that looks like the simple payment for [in effect] buying children”. Despite that, Hedley granted Mr and Mrs A a parental order.

Hedley took the same view in 2008 in the case of X and Y – the first international surrogacy case the high court ruled on. A married couple whose repeated attempts to become parents had failed had twins known as X and Y using a Ukrainian surrogate. They also paid more than was “reasonable” to the woman, who used the money to put down a deposit on a flat, but obtained an order.

Sam King, a family law barrister specialising in assisted reproduction, warned couples having a baby through surrogacy abroad not to assume the high court would retrospectively endorse an arrangement that was “obviously commercial”. “They are taking a chance [by paying large sums]. Not all judges may be as generous as Mr Justice Hedley has been so far. All you need is one family to be denied a parental order because too much money has been paid for the whole thing to be thrown into confusion.”

Natalie Gamble, a lawyer who acted for the parents in both those cases, said: “If you don’t get a parental order the English couple aren’t seen as the child’s legal parents and you are committing an offence if you are caring for a child that’s not yours. You have to tell social services if you’re doing that.”

International surrogacy is hugely controversial. “It’s unethical and exploitative because the trade is all one-way,” said Breedagh Hughes, a Royal College of Midwives spokeswoman, on the ethics of childbirth. “It reduces babies to the level of commodities.”

Jonathan, a 32-year-old nurse, tells how he and his civil partner, Colin, 33, a financier, spent $150,000 (£98,000) on surrogacy to become the parents of Harriet, who was born in California last year. They live in London.

“We began discussing having a child in 2006, when we were deciding to become civil partners. I was feeling broody, and had always wanted to have my own biological child. We opted to pursue surrogacy in California because we would get legal custody there of the child before it was born and the surrogate would have no legal relationship to the baby.

“My sperm was introduced to eggs left by an egg donor: they were fertilised in an IVF clinic in Los Angeles and two of the embryos were implanted into the surrogate. She simply carried the child for nine months.

An agency in LA found both the egg donor and the surrogate. We never met the egg donor or knew who she was, but knew her medical history, results of her genetic tests, what she looked like and so on. We did meet and get on well with the surrogate, who was called Jennifer. She had two daughters of her own and had been a surrogate once before. There was no coercion. We had a contract, and Jennifer specified things in that like that she wanted back massages and a big hotel room for her family to stay in when she was giving birth.

Agencies in California quote a price of $100,000 to $150,000 to do everything relating to a child. The whole process wasn’t too difficult, and cost us about $150,000. We paid the embryologist $60,000, though that included the harvesting of the donor’s eggs, the IVF and the transfer of the embryos into the surrogate. It was $40,000 for the surrogate and $10,000 for the egg donor, plus $10,000 to the agency, who supplied the donor and the surrogate. Then there was $10,000 for our lawyer, $5,000 for the medical and psychological screening and another $5,000 for medication for both the donor and the surrogate, to ensure they were in cycle at the same time.

“Bringing Harriet into the UK nine months later was incredibly difficult, though, and we engaged lawyers to help us. She had to come in as an immigrant on a US passport on a six-month tourist visa. When we later filled in a form to get her British citizenship, we put ‘not known’ in the section headed ‘mother’. She now has dual nationality and is legally ours under Californian law. If we do apply, it could be an issue that we paid well over the ‘reasonable expenses’ limit – that is, we paid a fee. That’s illegal in this country, but allowed under Californian law.

“We shouldn’t have to seek a parental order. She was conceived and born in California as our child, and her birth certificate says who her parents are, so the courts here should respect Californian law.

Having to apply for a parental order, where there’d be an assessment of Harriet’s welfare and Colin would have to prove that he’s no danger to her, is an inequity. Anybody else can go out, get drunk, get pregnant, bring up a child appallingly and face no intervention or legal barriers.

I resent people saying that British couples who resort to surrogacy are buying babies abroad. We didn’t buy Harriet: she’s not picked off a shelf. She’s not a ‘designer baby’.

We had our own child and had a great team to help us. All we did was rent a woman to carry her. We paid for the services of an embryologist and an incubator who walks and makes good babies – but we didn’t buy a baby. She’s my daughter biologically, and she’s our baby.

A lot of heterosexual couples in the UK spend a lot of money having many cycles of IVF at £5,000 a time – is that not buying a baby?”

Only first names have been given to protect the family’s identity

More information on surrogacy law and international surrogacy law from the Gamble and Ghevaert website.

Going solo: fertility treatment options and the law for women starting a family on their own

Friday, April 2nd, 2010

Published in BioNews 551, 29 March 2010

It’s tough to get life sorted as a modern woman. Education, work and finances now commonly take women well into their thirties before they decide to start a family, and not everyone manages to find the right partner by the time they get there. It is perhaps not surprising that increasing numbers of women are making the decision to start a family independently. ‘Solo’ mothers (as distinct from single mothers) are those who make a positive decision to go it alone and to conceive without a partner – but as well as the social and financial implications of this choice, there are a number of legal implications which all solo mothers in the UK ought to give careful consideration to.

One option for solo mothers is to conceive through sperm donation at a licensed clinic. The sperm is screened, tested and quarantined, ensuring the safety of mother and child and the quality of the sperm. A range of treatments are available, including intra-uterine insemination (IUI) and IVF (in vitro fertilisation) and potentially even treatment with donor eggs, depending on the woman’s age and medical history, and assessed with medical guidance from the clinic involved.

One of the biggest longer term advantages for many solo mothers is the parental autonomy and legal clarity this option brings: the status and responsibilities of the donor are excluded by law, and in practice there is no other parent to manage. Of course, this has its downside too, and it is important for a solo mum to ensure she will have all the practical support she will need as chief carer and breadwinner, and to make careful provision in her will to ensure her child is fully protected if anything happens to her.

Children conceived through sperm donation at licensed clinics in the UK now have the right to find out the donor’s identity (and possibly to make contact with genetic half siblings) once they reach the age of 18, which means that their genetic heritage is available to them if they wish to find out more. For many solo mother families, this offers a good balance: parental autonomy for mum during childhood, but the option for the child to contact the donor and siblings in later life.

In years gone by, it was difficult for single women to obtain treatment with donor sperm at a licensed clinic. Until 2009, the law provided that fertility clinics had to consider the welfare of a child before offering treatment, ‘including the need of the child for a father’ – for many years many clinics interpreted this as a bar on treating single women. Clinical practice evolved over time to a more flexible approach, and in 2009 the law was updated so that clinics now have to consider the child’s need for ‘supportive parenting’. This was explicitly worded to be more inclusive of single women (and lesbian couples) and means that single women should now not have any difficulty accessing licensed treatment, albeit that donor sperm may be in short supply in some places and that treatment may need to be privately funded.

Another option is known donation or co-parenting. Some solo mothers ‘team up’ with a man who is willing to act as a known donor or co-parent, often gay or single. Every situation is different, and the range of involvement from the biological father after conception can stretch from none to full shared parenting. Different treatment options are also available, including natural conception, artificial insemination at home and IUI or IVF at a licensed clinic.

It is important in such situations to think through and manage the longer term and legal issues from the outset. Unless conception occurs at a licensed clinic, the donor will be the child’s legal father and will be both legally and financially responsible for the child. If conception occurs at a licensed clinic, it may be possible to register the donor with the Human Fertilisation and Embryology Authority (HFEA) and thereby exclude his parental status, but care needs to be taken (and it may be necessary to put in place additional legal documentation) if he intends to have ongoing parental involvement after the birth. It is a common misconception that known donors to single women always have their legal status excluded if they donate through a licensed clinic.

Where there is a clear intent that the donor will be known and treated as the child’s father, both sides should be clear about the legal issues before going ahead. The decision as to whether the father is named on the birth certificate is significant as this will dictate how much decision-making power the father has in his child’s upbringing. It is also important to think through the issue of financial responsibility and how this will be managed, as well as the intention for sharing care in practice both in the early months and in the longer term. In many cases, it is appropriate to put in place a donor or co-parenting agreement to cover these sorts of issues, to provide clarity and to help flush out any potential problems before they arise. An agreement does not bind the family court – since the parents cannot stop the court doing what it thinks is in a child’s best interests – but it will be taken into account if a dispute does arise.

It is important to take care if the solo mum conceives while she is still legally married or in a civil partnership. Problems can arise for women who make the decision to start a family on their way out of a marriage or civil partnership, and are keen to get going as soon as possible before their divorce/dissolution is finalised. The law provides that any child artificially conceived by a married woman or one in a civil partnership (and this includes home insemination) will be treated as the legal child of her husband or civil partner. In most cases this is the opposite of what is intended, making it critical to take legal advice before conception.

Women are increasingly making reproductive choices independently, typically in their thirties and forties and often simply to avoid missing out on motherhood before it is too late. The decision is often one which has been made over a considerable period of time, with care, thought and courage. Such women have more complex issues to grapple with than many other fertility patients, both in their conception choices and their longer term parenting issues, and it is important for them to consider the options and the law carefully from the very start.