Fertility Law | Natalie Gamble Associates

Archive for the ‘fertility law’ Category

UK Donor Link threatened with closure

Tuesday, August 23rd, 2011

We are dismayed and alarmed by news that funding may be withdrawn from UK Donor Link, an organisation which provides vital support to donor conceived people conceived in the UK before 1991. Natalie Gamble has written to the Minister of Health Anne Milton to urge her to reconsider the decision, and Natalie’s letter is reproduced below:

Dear Minister

I am writing as a specialist fertility lawyer, responsible for representing many families created through donor conception. I understand that the public funding provided to UK Donor Link since 2003 may be withdrawn from October, and that as a result UK Donor Link has already had to close its doors to new registrants and is threatened with closure from October.

I urge you to ensure that funding for UK Donor Link continues. UK Donor Link provides a critical role in the provision of information to donor conceived people, and is the only organisation to offer support to adults conceived with donated eggs or sperm before the Human Fertilisation and Embryology Authority’s Register of Information was established in August 1991.

Ensuring that donor conceived people have access to information about their genetic heritage has been a clear foundation of government policy in relation to donor conception consistently over the past decade. The policy reflects the growing and universally accepted understanding of the importance of openness and availability of information to donor conceived people, and followed a decision of the High Court as to UK law’s compliance with human rights legislation.

In 2002, the English High Court heard a landmark case (R. (on the application of Rose) v Secretary of State for Health) which established that if donor conceived people were denied rights to access information about their genetic heritage this engaged their human rights under article 8. Mr Justice Scott Baker held that:

“Article 8 is engaged both with regard to identifying and non-identifying information, albeit in this case the identity of the donors is not directly sought. What is wanted is non-identifying information and a voluntary contact register. I do emphasise, lest there be any doubt about it, that the fact that Article 8 is engaged is far from saying that there is a breach of it. That question, which may fall to be decided on a further occasion, involves consideration of other matters and may depend on any future action taken by the Secretary of State.”

In response to this case, two things happened:

1. Parliament changed the law in respect of information about donor conception for people conceived in the UK since 1991 whose information was kept on the HFEA’s Register of Information. Under the Human Fertilisation and Embryology Authority (Disclosure of Donor Information) Regulations 2004/1511 (which came into force on 1 April 2005) newly registered egg and sperm donors had to agree to being identifiable to their offspring once they reached the age of 18; and donors who were already registered (who, other than in limited circumstances, could not continue to donate on an anonymous basis) were given the opportunity to re-register as identifiable.

2. UK Donor Link was established in 2003, with the support of public funding, in order to enable donor conceived people conceived in the UK before 1991 (whose details were not kept on the HFEA’s Register of Information) to make contact with genetic relatives through DNA testing and other methods of matching.

As a result of these actions, the question of whether the existing law breached article 8 of the Human Rights Act 1998 (justifying a declaration of incompatibility) did not need to be determined by the court.

The action taken by the government was in response to the High Court’s judgment, and represented a clear acknowledgement of the importance of providing access to information for donor conceived people. The policy encompassed people conceived both before and after 1991 (although acknowledging the different means available for accessing information in each case). This is inevitable given that, since human rights issues were engaged, they affected people irrespective of the whether they were conceived before or after 1 August 1991.

In 2008, additional steps were taken through the Human Fertilisation and Embryology Act 2008 (following rigorous Parliamentary debate) which further extended the rights of donor conceived people to information about their genetic heritage. Section 31 of the Human Fertilisation and Embryology Act 2008 allows all donor conceived people whose details are kept on the HFEA Register of Information to have the opportunity to contact genetic siblings in adulthood, thereby extending access to information on the register. Section 31ZF of the HFEA 2008 also made explicit provision allowing the HFEA to run or to fund a ‘voluntary contact register’ (in practice UK Donor Link) to support people conceived before 1 August 1991. This therefore represents a recent Parliamentary endorsement of support for UK Donor Link, at the level of primary legislation.

I know that others have written to you emphasising the importance of UK Donor Link and the excellent work that it does for donor conceived people conceived in the UK before 1 August 1991. In addition, I urge you to consider the legal context of support for donor conceived people in the UK, and the potential human rights implications of any withdrawal of funding.

Yours sincerely, Natalie Gamble

Further information about donor conception law in the UK is available on our website.

If you would like to add your support and write to the Minister of Health, her details are Anne Milton, Public Health Minister, Department of Health, Richmond House, 79 Whitehall, London SW1A 2NS.

Tags: donor conception, donor conception law, donor insemination, fertility law, fertility lawyer, fertility treatment, HFEA donation review, Human Fertilisation and Embryology Act, Natalie Gamble, sperm donation law, sperm donor law
Posted in donor conception, fertility law, Natalie Gamble, Natalie Gamble Associates news | Comments Off

NGDT wants to hear donors’ voices

Tuesday, August 16th, 2011

The National Gamete Donation Trust (NGDT) are running a Donor Satisfaction Survey on the back of some poor feedback from prospective egg and sperm donors. They asked for our support to get the issues addressed, and Kriss Fearon from the NGDT has written the following article for our blog. If you are a donor, please do take part in the NGDT survey and have your voice heard:

What would you think if you approached someone asking if you could donate a large and very personal gift, and your message was ignored, or answered weeks or months later? If, when you went to see them to talk about the gift, they left you waiting and with the distinct impression they didn’t think the gift was important? Would you carry on trying – or assume they weren’t interested, and go somewhere else?

This is the experience some egg and sperm donors have when they approach a clinic.

The NGDT works with donors on a daily basis and hears directly from them about their experience of donation. Too often the feedback is not good, and yet some small changes in the way donors are treated could produce some big improvements.

To carry weight with the people who can make a difference, the Trust needs to prove that changes are necessary. That’s why we are running a survey: to gather evidence of what works and what doesn’t work. This will be the basis for making recommendations on how to treat donors through the whole process of donation, from information-gathering at the beginning to sharing the outcome at the end of the cycle.

The NGDT are targeting donors at two stages: first, as enquirers, and second, after a donor has completed their donation cycle. It’s important that donors are treated with respect; it’s also important that those who enquire but do not donate are treated well. People think really carefully before they make that first enquiry. It’s often prompted by the infertility of a close friend or family member, so there’s a big emotional investment. The minimum they should receive for this unpaid act of generosity is to be treated courteously.

Why does this matter? For the same reason that poor service matters anywhere else: reputation. Donors talk to their friends and family, who in turn share with their friendship groups. They talk to the media. And, most importantly, prospective donors trust current donors to give them an honest picture of what to expect. The longer-term impact of one person’s bad experience can deter others from ever looking into it. Good donor care is good practice, but it is also an essential recruitment tool.

When you’ve known people with fertility problems finally achieve their much loved and hoped-for child, it is hard to understand why the people whose precious gift made such a difference are sometimes treated so disappointingly. That must change.

http://ngdt.co.uk/donor-satisfaction-survey

For more information about the National Gamete Donation Trust, visit their website at http://www.ngdt.co.uk/

There is also more information about the law for egg and sperm donors on our website.

Tags: donor conception, donor conception law, donor insemination, fertility law, fertility lawyer, fertility treatment, National Gamete Donation Trust, NGDT, sperm donation law, sperm donor law
Posted in donor conception, fertility law | Comments Off

First results from HFEA egg and sperm donation review

Tuesday, July 26th, 2011

The HFEA has been reviewing the rules for egg and sperm donation in the UK and has announced its first set of decisions this month.

The basic news so far is that little is set to change. There will be no change to the current rule allowing donors to place any conditions on how their eggs and sperm are used. This decision could cause conflict between fertility and equality legislation, as donors remain free to say that their eggs or sperm can only be given to recipients who are married, heterosexual or of a particular religious or ethnic background. In response to objections, the HFEA has said it plans to issue further guidance, as well as to establish a ‘best practice’ concerning the taking of consent from donors.

The HFEA has also confirmed that the maximum number of families a single donor can help to create will remain at 10 (some had called for recruited donors to be used more widely, although others expressed concerns about the numbers of genetically related children who might be created from the same donor). The HFEA will, however, encourage clinics to optimise use of donors since at the moment it seems that more families could be created within the existing limits.

We await the outcome of the review in respect of payments to donors, a decision on which is expected in October. Currently donors can only receive their out of pocket expenses and loss of earnings limited to £250 per donation cycle, and no payments for inconvenience or discomfort are permitted. The HFEA is considering whether the £250 cap should be increased, or other types of payments allowed, as they are in many other countries.

There is more information on donor conception law on our website.

Tags: donor conception law, egg donor law, HFEA donation review, sperm donor law
Posted in donor conception, fertility law | Comments Off

Surrogacy law: court awards parenthood to deceased father following Indian surrogacy

Tuesday, July 12th, 2011

The High Court has made an unprecedented order awarding parenthood to a deceased father of a baby boy born through surrogacy in India. A couple, known only as Mr and Mrs A, entered into a surrogacy arrangement and their son was born in India on 12 April 2010. The biological parents were Mr A and either Mrs A or an unknown donor. However, under UK surrogacy law, the Indian surrogate and her husband were treated as the baby boy’s legal parents, and Mr and Mrs A therefore applied for a parental order to reassign parenthood and gain a UK birth certificate naming them as mother and father.

But Mr A tragically contracted liver cancer during the course of the proceedings and died, leaving the High Court to make a landmark decision to award parenthood to the mother and her deceased husband.

The case was complicated by the fact that only couples – and not single people – can apply for parental orders. When the UK’s surrogacy laws were debated in 2008, Parliament decided that only couples should be able to commission surrogacy arrangements. Parents who apply for parental orders following surrogacy must therefore either be married or living as partners in an enduring family relationship.

Leading fertility lawyer Natalie Gamble, who drafted an amendment to the law in 2008 (which was debated in Committee but rejected) which would have allowed applications from single parents, comments: “The case shows how dangerously outdated our surrogacy laws are. Although Mrs Justice Theis was able to find a way around the law in this case because the father had died after issuing the application, what would have happened if either of the parents had died earlier, perhaps during the pregnancy? This has always been an accident waiting to happen, and the restrictiveness of the current law is leaving children vulnerable and unprotected.”

Natalie, whose firm has dealt with many of the leading international surrogacy cases heard by the High Court in recent years including the first to ratify a foreign arrangement, goes on to say: “The case demonstrates the continuing difficulties the courts are facing in dealing with surrogacy arrangements. The High Court is repeatedly having to stretch the legislation in order to secure the status of vulnerable children born through surrogacy, and the emotional and financial cost of this for the family involved is significant. We need a better system of law which caters for these kinds of eventualities, and gives clarity and certainty to ensure that children being born through surrogacy (and their parents and surrogates) are properly protected.”

The case is also the first published case to ratify an Indian surrogacy agreement in which more than expenses were paid to a surrogate mother, following a line of previous published cases ratifying commercial payments for surrogacy made to US and Ukrainian surrogate mothers.

Click here for more information about international surrogacy and about surrogacy for single people.

Posted in fertility law, international surrogacy, Natalie Gamble, UK surrogacy | No Comments »

BBC Radio 4 Woman’s Hour debates whether the UK should allow commercial surrogacy

Friday, June 3rd, 2011

Natalie Gamble was interviewed on this morning’s Woman’s Hour by Jenni Murray, in a debate about whether it is time for UK law on payments for surrogacy to be updated. Responding to the comments made by High Court judge Mr Justice Hedley on last weeks’ World at One (about several cases in which we acted for the parents), Woman’s Hour considered how the UK should respond to the growing phenomenon of Brits going abroad for surrogacy.

Working with many parents conceiving through international surrogacy arrangements, we know very well how difficult the current law is for families, and the risks it poses for newborn children who can be stranded stateless and parentless in a foreign country. Natalie was interviewed on the programme together with Kim Cotton, surrogate mother and founder of COTS, and Lecturer in Ethics Anna Smajdor. You can listen to the debate at http://www.bbc.co.uk/programmes/b011jx05.

There is more information on our website about surrogacy law and about the reasons why we think the current surrogacy laws need changing.

Tags: commercial surrogacy, international surrogacy law, Natalie Gamble, Woman's Hour
Posted in fertility law, gay men surrogacy, international surrogacy, Natalie Gamble, UK surrogacy | Comments Off

Crossing borders for surrogacy: the problems for families and policymakers

Wednesday, June 1st, 2011

This article, written by Natalie Gamble for Bionews, was published on 31 May 2011:

More people are crossing borders to build their families than ever before. Prospective parents can easily access information about treatment options in countries where regulations permit treatments outlawed in the UK or where there is little or no regulation at all. But where surrogacy is involved, going abroad raises very difficult legal issues.Problems arise where the law in the destination country and the law in the parents’ home country do not match up over the basic question of who are recognised as the legal parents. In the worst cases, babies are born without any legal parents, left stranded in the wrong country without identity or nationality. These sorts of issues are not uncommon in cross-border surrogacy cases, since what drives prospective parents to go abroad for surrogacy in the first place is the wish to access more liberal surrogacy laws.

Reasons for crossing borders might include escaping a prohibition on surrogacy at home, or accessing a commercial environment which makes surrogate mothers (and egg donors) more readily accessible. But because the parents may have breached the law or public policy at home, they are often denied legal parental status – even if they have a court order or birth certificate in the foreign country confirming their parentage.

From the perspective of the immigration authorities and family courts in the home countries, this creates a real headache. If a country has made a policy decision against surrogacy (or against commercial surrogacy), granting exceptions and solutions to those who evade the law by going abroad runs the risk of undermining the wider policy and encourages others to follow suit. However, the reality is that public policy collides uncomfortably with the need in practice to protect a vulnerable child who has already been born.

This is not just a problem for the UK. In a recently reported French case, twin children born through surrogacy to a French couple in the US were denied French citizenship. Similarly a German couple were recently denied a German passport for their child born through surrogacy in India.

The UK’s High Court Family Division, with its paramount focus on protecting the welfare of children, has been less intransigent, and there is a growing history of legal decisions which have retrospectively authorised foreign surrogacy arrangements.

The first case of this kind in 2008 involved a British couple whose surrogate twins were born ‘stateless and parentless’ in the Ukraine because of the conflict between UK and Ukrainian law: Ukrainian law said that the British couple were the parents, and British law said that the Ukrainian surrogate and her husband were the parents. The court ultimately sanctioned the commercial Ukrainian arrangement (an arrangement which would not have been legally possible to set up in the UK), awarding parenthood to the British parents. There have subsequently been three further reported cases in the High Court (and other applications granted without the decisions being made public) involving similar decisions.

The big problem is payments. UK law seeks to discourage payments for surrogacy, and the court is therefore struggling with the question of what it should do where parents enter into surrogacy arrangements outside the UK legal framework, and then retrospectively seek the approval of the court.

To be clear, it is not a question of the parents having broken the law. Payments for surrogacy are not (and never have been) illegal in the UK, since a deliberate decision was made when the law was put into place not to criminalise parents or surrogate mothers for making or receiving payments. What is illegal in the UK is for a third party to be paid to broker a surrogacy agreement, a rule which does not (and could not) extend to agencies outside the UK. Ultimately, it is therefore entirely legal for prospective parents to engage foreign professional surrogacy agencies to help them.

When granting a parental order (which secures the status of a family unit created through surrogacy) the UK courts also have an explicit power to ‘authorise’ a payment of more than expenses to a surrogate mother at their discretion. The intent of the law is clearly to make this the exception rather than the rule, and to encourage altruistic surrogacy as the norm. However, the growth of cross border surrogacy is requiring these exceptional powers to be exercised more regularly.

Ultimately, it is positive that there is a legal solution in the UK for children caught in these difficult legal conflicts, and it is critical that this remains the case. Any attempt to tighten up the rules to enforce restrictions on payments more thoroughly will make things worse for innocent children, who in international situations may be put at serious risk.

What we need is better information about the perils of international surrogacy, and ultimately a move towards a more open, honest and straightforward legal solution in the UK (bearing in mind that payments for ‘expenses’ in the UK are often not in practice much different in scale from payments typical for ‘commercial’ US surrogacy arrangements).

Many parents still enter into foreign surrogacy arrangements without being aware of the potential legal complications and then find themselves stranded abroad facing a legal process which is much more complicated than they had anticipated. Others know of the difficulties and some choose not to engage with the UK legal system at all (which is practically possible in certain scenarios, depending on the immigration position) thereby leaving their family’s status entirely unsecured. Either way, children are being put at risk and this is something we have a duty to take very seriously.

Tags: commercial surrogacy, international surrogacy
Posted in fertility law, gay men surrogacy, international surrogacy, Natalie Gamble, UK surrogacy | Comments Off

Natalie quoted in today’s Guardian on the Elton John story

Wednesday, December 29th, 2010

From the Guardian, 29 December 2010 (Helen Pidd):

You can tell everybody this is our son

Helen Pidd

John and Furnish announced that their son had been born on Christmas Day. Photograph: Theo Wargo/Getty Images/Time Inc

When the Beatles imagined their lives aged 64, they sang of knitting sweaters by the fireside, doing the garden and balancing grandchildren on their knees. Three months off that landmark birthday, Elton John might have partly retired from the pop music industry, but he is set to be busier than ever after becoming a father for the first time. The singer announced today that he and his partner, David Furnish, who is 48, have become parents after using a surrogate mother in the US.

The boy, Zachary Jackson Levon Furnish-John, was born in California on Christmas Day, weighing 7lb 15oz, John’s LA-based publicist confirmed. The name Levon is the title of a track on John’s 1971 album Madman Across the Water. In a statement, the couple said: “We are overwhelmed with happiness and joy at this very special moment. Zachary is healthy and doing really well, and we are very proud and happy parents.” The identity of their son’s surrogate mother is being protected by the new parents, and all questions about the birth and conception were answered “no comment” by the singer’s UK-based publicist.

It is not known who is the father, but Natalie Gamble, a specialist in fertility law at Gamble and Ghevaert LLP, said that one or both men will have provided sperm. She said that in all Californian cases of which she was aware, prospective parents must provide the sperm, and the egg would come not from the surrogate but a second woman.

John has spoken in the past of his desire to become a father, announcing last autumn that he wanted to adopt a 14-month-old boy from an orphanage in Ukraine. He said then that the couple had always talked about adoption, but that he had objected because of his age.

It was the death of his keyboard player, Guy Babylon, that helped to change his mind. Babylon, who died of a heart attack aged 52 last year, had two children whom John described as “wonderful”. He said at the time: “What better opportunity to replace someone I lost than to replace him with someone I can give a future to?” His plans to adopt were reportedly thwarted by Ukrainian laws. Instead, the couple turned to the US, a popular destination for UK citizens hoping to enter into surrogate arrangements.

In some US states, including California, parents who have paid a surrogate can apply for a prebirth order. This means that they, and not the woman who carried the baby, will be listed on the birth certificate as parents, regardless of whose egg and sperm was used in conception. And in California, unlike in Britain, surrogates can be paid an unlimited fee.

Olga van den Akker, professor of health psychology at Middlesex University, said the potentially enormous sum paid by John – who has an estimated fortune of £185m, according to the Sunday Times Rich List – could cause problems for his son further down the line. “We don’t know how much Elton John paid for him, but it was almost certainly a lot more than he would have paid in the UK, where around £10,000 per child is the norm. In the US, babies can cost a lot, lot more than that, especially where celebrities are involved. “Problems could arise if he thinks that he has been sold by his ‘mother’ – either the surrogate, and/or the egg donor, if one was involved.”

Lawyers said that the sum paid would become legally important if John and Furnish want to bring up Zachary in the UK, where surrogacy is legal only for altruistic and not commercial reasons. Surrogacy has been regulated in Britain since 1985, after Kim Cotton was paid £6,500 to carry a child conceived using her own egg and the sperm of a man whose wife was infertile. Gamble said: “The immigration and nationality rules are complex, and John and Furnish’s child may require special permission from the Home Office to enter the UK. In any event, their legal status in California will not be automatically recognised here, and they will need to apply to the UK high court for a parental order which legally recognises them as parents.”

A judge must then weigh the child’s welfare against the need to uphold public policy – in other words, recognising the child’s need for loving parents while acknowledging that UK law does not encourage the commercialisation of surrogacy, said Gamble. “Of the three publicly available judgments made on foreign surrogacy arrangements in the UK court since 2008, all three have allowed the child to stay with the parents,” added Gamble, who this month represented a couple in a similar situation to John and Furnish.

In that case, the couple were deemed to have paid more than just “reasonable expenses” to an American surrogate. But Mr Justice Hedley allowed the couple to keep the child after ruling that the existing rules on payments were unclear, and that the baby’s welfare must be the main consideration. Only in the “clearest case” of surrogacy for profit would a couple be refused the necessary court order to keep the baby, he said.

Andrea Williams, director of the Christian Legal Centre, said: “Children are not commodities to be bought and sold. It is not the case that everybody has the right to a child, whatever the cost.”

Potential legal issues aside, several celebrities congratulated the singer, with Elizabeth Hurley among the first to offer her best wishes. She wrote on Twitter: “Massive congratulations to David and Elton on having their beautiful son. Can’t wait for my first cuddle.” Lord Sugar expressed disbelief at the news, tweeting on the microblogging site: “Am I hearing things right on Sky news Elton John becomes a surrogate father.” He added about an hour later: “Oh well congratulations to him.”

Surrogacy and the law

• Only non-commercial (ie altruistic) surrogacy is legal.

• Surrogates cannot be paid a fee for carrying a child. They may only charge “reasonable expenses” ranging from £12,000 to £15,000, according to the voluntary organisation Childlessness Overcome Through Surrogacy.

• UK law does not recognise surrogacy as a binding agreement on either party. There is little the intended parents can do to secure their position before the birth, even if baby is genetically related to both intended parents and not the surrogate. It is illegal to advertise for surrogates or intended parents.

• The surrogate is always registered as the legal mother of the child, even if an embryo from the recipient couple was used, as in gestational surrogacy.

California

• Commercial surrogacy is legal.

• Surrogates can be paid unlimited fees for carrying children.

• The commissioning couple have parental responsibility, not the woman who gave birth to the child. Californian courts have consistently upheld the intended parents’ rights and obligations to their parenthood when they use a surrogate or egg donor to help create their families.

• Surrogacy agencies are legal. Surrogates and egg donors can advertise themselves on websites.

• California recognises a contractual intent as a basis for parentage, meaning that prospective parents using surrogates can get their names on the child’s birth certificates.

There is more information about gay surrogacy law and international surrogacy law on our website

Tags: Californian surrogacy, Elton John baby, fertility law, Guardian, Natalie Gamble, surrogacy law
Posted in family building, fertility law, gay men surrogacy, international surrogacy, Natalie Gamble, Natalie Gamble Associates news, same sex parenting, UK surrogacy | Comments Off

Congratulations to Elton John and David Furnish

Tuesday, December 28th, 2010

Many congratulations to Elton John and David Furnish on the arrival of their son Zachary, born through a surrogacy arrangement in California on Christmas Day.

Important changes to the law were passed in 2008 giving equal treatment to same sex parents who conceive a child together and, just as Elton and David were among the very first gay couples to register their civil partnership when the new laws came into force in 2005, they stand to be one of the first gay couples named as joint legal parents of a surrogate child. Surrogacy law in the UK is complex and, as parents who have entered into an arrangement abroad, they will need to grapple with immigration and nationality issues as well as a court application here in the UK within six months of the birth to be recognised as Zachary’s legal parents.

They are just one of many gay couples starting a family through surrogacy, adoption and co-parenting. We send many congratulations to their new exceptional family, and we wish them the very best of luck with their parenthood journey.

There is more information about surrogacy law for gay couples on our website.

Tags: Californian surrogacy, Elton John baby, gay surrogacy law, surrogacy law
Posted in family building, fertility law, gay men surrogacy, international surrogacy, same sex parenting, UK surrogacy | Comments Off

Landmark international surrogacy case – child’s welfare is paramount

Friday, December 24th, 2010

We are pleased to report that we have successfully won legal parenthood status for a British couple who entered into an international commercial surrogacy arrangement with a surrogate mother in Illinois.

In only the third published decision of its kind (Natalie having also acted for the parents in the first High Court decision of this kind, Re X and Y, made in 2008), the court upheld the best interests of the child and authorised payments of more than expenses to the surrogate mother.

The court’s decision in the case of Re L made the front page headline in the Daily Telegraph (http://www.telegraph.co.uk/health/children_shealth/8190131/Childless-couples-win-the-right-to-pay-surrogate-mothers.html) with a further article, following an agreed statement made anonymously by the parents (who wished to tell their side of the story), several days later (http://www.telegraph.co.uk/news/uknews/8194099/Surrogacy-couple-paying-American-woman-was-our-last-chance-for-a-child.html).

The case is important in establishing that, following changes to the law made in 2008, the welfare of the child is now the court’s ‘paramount’ consideration. Judgment was published on 8 December 2010 by Mr Justice Hedley and it has been heralded as a landmark decision awarding legal status to the parents notwithstanding the public policy ban on commercial surrogacy in the UK.

More information about international surrogacy law is available on our website.

Posted in fertility law, international surrogacy, Natalie Gamble, Natalie Gamble Associates news, UK surrogacy | Comments Off

Natalie Gamble speaks at Progress Educational Trust Annual Conference: Cross Border Reproductive Care – Who oversees overseas?

Sunday, December 5th, 2010

Natalie Gamble was delighted to address the Progress Educational Trust’s Annual Conference on 24 November 2010, speaking to an eminent audience about the legal issues for patients having fertility treatment overseas, including donor conception and international surrogacy.

Reproduced below is Rachel Lyons’ article about the event, which appeared in BioNews 586

In a cold room at the Institute of Child Health in London, talk turned to warmer climes during session two of the Progress Educational Trust (PET)’s conference ‘Passport to Parenthood’. Even though the temperature of the room was cold, the debate surrounding who does (and should) oversee overseas cross-border reproductive care ‘hotted up’.

The session was chaired by Dr Evan Harris, adviser to the Social Liberal Forum and former Liberal Democrat Shadow Science Minister. The main aim of this session was to provide an overview of the current legal and regulatory frameworks surrounding cross-border care and to establish whether any changes are required.

The first panellist of the session was Juliet Tizzard, Head of Policy at the Human Fertilisation and Embryology Authority (HFEA). The HFEA is the UK’s fertility regulator and has a clear responsibility for regulating the activities of fertility centres in the UK. Juliet’s talk mainly focused on the question of whether this responsibility applies to overseas reproductive treatments.

Juliet began by outlining three ways in which the HFEA (and its clinics) has a responsibility, role or duty in relation to cross-border reproductive care. Namely: to inform the patient about the possibility of going abroad for services, to refer them abroad for reproductive services, or to be involved in the shared care arrangement system between the UK, European Union (EU) member states and internationally.

Juliet said the circumstances surrounding shared care arrangements cause the most problems for the HFEA. According to Juliet, the HFEA has sought legal advice on the extent of its powers to regulate the activities of UK licensed clinics which enter into a shared care arrangement. The advice that the HFEA received was unequivocal. The HFEA has almost no powers over clinics that provide information about or refer patients to clinics in other countries.

Regardless of this however, Juliet explained that the HFEA does expect centres, whether referring patients abroad or recommending shared, cross-border care, to provide patients with information about the consequences of having treatment outside the UK. For instance, patients having donor conception treatment abroad should be made aware that they (and their resultant child/children) will not be able to request information from the HFEA about their donor.

Juliet concluded by saying the HFEA will soon be revising the information they provide to patients and will make details available after they’ve concluded a consultation in January 2011. The HFEA hopes this will help those considering whether or not to travel abroad to understand the advantages and disadvantages. This, in turn, will help patients find the clinic that best meets their needs and will enable them to make informed treatment choices at their chosen clinic.

Second to speak was Natalie Gamble, who was introduced as the UK’s leading fertility lawyer and a founding partner of Gamble and Ghevaert LLP. The main focus of Natalie’s talk was the issues surrounding the patchwork of laws and regulations governing cross-border reproductive care. As she said: ‘the law is struggling to catch up’. Natalie’s primary concern was the information available on donor rights, parenthood and international surrogacy arrangements.

Natalie started by confirming information on country of conception is key for patients. Potential patients may not have the same protection that they might have had in their home country. The problem is many are not aware of this and how it might impact on their situation.

People need to be concerned about whether they will be treated as the legal parent of a child born to a surrogate. Natalie said the law of the person’s home country applies. In the UK, a child’s father and mother have parental responsibility for the child if they were married to each other at the time of his or her birth. Where a child’s mother and father were not married to each other at the time of his or her birth, only the mother has automatic parental responsibility for the child.

Natalie used surrogacy in cross-border situations as the perfect illustration of where the intended mother and father may have immense difficulty claiming legal parenthood over the child. As Natalie put it, ‘there is no harmonisation here’. Different countries take radically different stances. She cited the case of re X and Y (Foreign Surrogacy) 2008 to highlight how difficult the situation can be. The case concerned a British couple who went to the Ukraine to undergo surrogacy, but the child faced considerable immigration difficulties. Under Ukrainian law, the commissioning couple were treated as the child’s parents from birth so the surrogate mother was not the child’s mother.

Under UK law, which applied to the commissioning couple, they could not be treated as the child’s parents without a court order. The child was potentially then both stateless and parentless. The judge in the case The Hon. Mr Justice Hedley cautioned those contemplating parenthood by entering into a foreign surrogacy agreement because of the possibility of unintended consequences.

Natalie concluded her talk by making three clear statements. First, there needs to be better public information available for those considering cross-border reproductive care. Second, the law globally is struggling immensely with this area. And lastly, we have to remember that ultimately, the first priority is to the resulting child and ensuring that they are protected.

The third speaker on the panel was James Lawford-Davies, who is a solicitor and partner at Lawford Davies Denoon. His talk focused on the EU’s approach to cross-border care. He explained each EU member state has an obligation to protect the free movement of persons and services and there should be no restrictions on this right. He provided the example of the landmark case of Yvonne Watts who challenged this right all the way to the European Court of Justice.

Even with this landmark case, James emphasised that the law remains uncertain. However, it is hoped that the draft Directive concerning the application of patient’s rights in cross-border healthcare will provide more legal certainty on the quality and safety standards across the EU. James did show slight concern for the margin of appreciation aspect of the Directive, which will mean provisions will be in place to enable member states to enact limitations on certain treatments. However, James (and the audience) did seem pleased the Directive might enforce the requirement that Member States have to provide information about the procedures and services available.

The final speaker of the session was Zeynep Gürtin-Broadbent, a research fellow at the Centre for Family Research at the University of Cambridge. Zeynep began her talk by discussing the difficulty in defining cross-border reproduction, as it is a new and rapidly evolving problem with a lack of empirical data. However, she was comforted by the fact that there are a large number of studies being undertaken, which should provide us with greater insight in the near future.

Zeynep questioned the diversity of cross-border reproduction, namely who/what is doing the travelling (intending parents, donors, the import and export of gametes) and the reason for this travel. Zeynep suggested four categories illustrating why people might go to a different country for reproductive treatment: 1) travel for legal restrictions, 2) resource scarcity, 3) safety concerns and 4) personal preferences.

Zeynep believes that it should be down to the regulators to tackle the issue of patients going abroad. She believes the regulators need to assess whether the current law is fit for purpose. She suggested the harmonisation of laws is a burden for the EU and individual member states to resolve. Zeynep believes there needs to be sound empirical evidence and creative thinking to solve these dilemmas.

The discussion that followed covered issues of the welfare and interest of the child, the disparity of the information available and the issues surrounding surrogacy and legal parenthood. The final word final word must go to Juliet Tizzard who said that ‘[the HFEA] is not wanting to wash their hands of this issue’. We await the results of the consultation, which will be launched in January, with interest. A report on the third session of the conference will be published in next week’s BioNews. PET is grateful to the conference’s gold sponsors Merck Serono.

There is more information about international surrogacy law, fertility law in the UK and donor conception law on our website.

Tags: cross border fertility treatment, fertility law, international donor conception, international surrogacy, Natalie Gamble, Progress Educational Trust
Posted in donor conception, fertility law, international surrogacy, Natalie Gamble, Natalie Gamble Associates news, UK surrogacy | Comments Off

Gamble & Ghevaert