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International surrogacy – UK High Court judge awards parenthood to non-British gay dads

Friday, March 15th, 2013

The decision in Re A & B (Parental Order: Domicile) represents another landmark ruling for NGA – a parental order having been granted to a non-British gay couple following the birth of their son through Indian surrogacy last year.

The case not only clarifies the law for foreign but UK-resident parents conceiving through surrogacy, but also shows how same sex parents are being drawn to the UK’s open culture and law. We were proud to have supported the parents in this case through to successful conclusion, and once again to have helped make new law.

What happened?

The parents, who are American and Polish respectively, moved to the UK as a couple in 2008 (having registered their domestic partnership in California four years earlier). They were initially attracted to the UK by our unrivalled equal laws and gay rights – something they were not afforded in their respective home counties. Having decided to start a family, they found a surrogate through an agency in India and were delighted when their son was born in 2012. On their return to the UK they sought help from NGA to establish the non-biological dad’s parental status, which led to their application for a parental order (the legal solution following surrogacy, enabling both intended parents to become their child’s legal parents under UK law).

What does the law say?

In order to be eligible for a parental order, at least one of the intended parents must demonstrate to the court’s satisfaction that they are ‘domiciled’ in a part of the UK. Domicile for these purposes is more complex than simply where a person lives – it comes down to where their permanent roots and allegiances lie. This particular criterion (one of a number of strict requirements attached to the parental order) is designed to prevent foreign parents ‘forum shopping’, by using the UK court to grant them a more favourable legal solution than their own country might. The parents in this case therefore had to show that they had made the UK their permanent home and that, notwithstanding their American and Polish citizenship status, they had cut their ties with the US and Poland and did not intend to return.

What did the court consider?

In order to establish whether the parents in this case had met this high bar, the judge considered a number of factors in detail. She was particularly assisted by the parents’ statements, which outlined in detail their connections here (including that they ran a UK based company and both intended to apply for British citizenship at the earliest opportunity) and their affection for the UK including their very personal reasons for making it their home and the place that they raise their family, away from the discrimination abundant in their home countries. The judge went on to quote one of their reasons for not returning to the US, “We will never return and raise our son in a society in which schools may censor him from talking about his family”, as a factor which bolstered their contentions.

Why is this case significant?

Mrs Justice Theis reiterated in this case the importance, for non-British parents applying for a parental order, of demonstrating a clear intention to make the UK their permanent home – the court otherwise being powerless to make a parental order. The judge was also assisted by an independent investigation of the circumstances surrounding domicile by CAFCASS Legal, who found that the parents had abandoned their respective domicile of origins in favour of English domiciles of choice. This case (in addition to Z v C [2011]) provides helpful guidance for future non-British parents through surrogacy who hope to apply for a parental order.

What you need to know if you are not British, or are British and based abroad, and considering applying for a parental order

Domicile is a far-reaching principle of law and far from contingent on just one factor. Having dealt with the key cases which have tested the law on this, we would be happy to advise you on your eligibility to apply for a parental order, no matter what your circumstances. You can contact us here, or alternatively there is more information about domicile on our website.

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Posted in fertility law, gay men surrogacy, international surrogacy, Natalie Gamble Associates news, same sex parenting | Comments Off

Natalie on the Today Programme – who should have the rights where a surrogate baby is disabled?

Thursday, March 7th, 2013

Natalie was interviewed by James Naughtie on this morning’s BBC Radio 4 Today Programme about surrogacy (listen again here). The programme covered a US surrogacy case which hit the news after a US surrogate mother refused to terminate her pregnancy at 21 weeks when it was discovered that the baby would be born severely disabled.

In the UK, surrogacy law gives all the rights to the woman who carries the pregnancy – she is the legal mother. Although a case like this has never happened in the UK, if it did there would be no doubt (as there was under US law) that the surrogate mother would hold all the cards. But is this the right approach?

In practice, we know on the ground that surrogacy disputes are incredibly rare. For the vast majority of cases, it would make more sense for the intended (biological) parents, rather than the surrogate, to have legal responsibilities much earlier – it’s what everyone involved wants, and the long delay transferring parenthood leaves children vulnerable for far too long. And where there are disputes, we need a more sophisticated approach to balancing the interests of all involved – surrogate, parents and child.

The real lesson of this case is that we can avoid problems like this by giving the right support at the start. Parents and surrogates need to communicate clearly, and those with radically mismatched views on termination should not proceed together. That is why it is so crazy that UK surrogacy law goes out of its way to deny those going into surrogacy arrangements the support they need. Under UK law, surrogacy contracts are unenforceable and illegal for lawyers to draft, and professional matching and brokering services are prohibited by criminal law. It’s time for that to change.

There is more information about surrogacy law and our campaigning work on our website.

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Posted in fertility law, gay men surrogacy, international surrogacy, UK surrogacy | Comments Off

NGA in Metro – should commercial surrogacy be legalised?

Friday, January 25th, 2013

Metro featured a big spread on Wednesday asking whether commercial surrogacy should be made legal in the UK.

Read Natalie’s comments on the increasing acceptance of surrogacy, and the need to create a more structured legal framework, as well as legal changes urgently needed to include single parents and to give intended parents legal status from birth. The Metro article is here.

You can also find out more about surrogacy law and our campaigning work from our website. Follow us on Twitter if you want to get involved.

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Posted in gay men surrogacy, international surrogacy, Natalie Gamble Associates news, same sex parenting, UK surrogacy | Comments Off

Indian surrogacy reforms – what’s the latest for gay dads and others?

Tuesday, January 22nd, 2013

There has been press coverage over the past couple of days about the new Indian surrogacy laws blocking gay dads from accessing surrogacy in India. It is an issue which has been brewing for a while, with a Bill lurking in the Indian Parliament for the past two years designed to regulate the Indian surrogacy industry and to stop foreign parents conceiving children they can’t take home. The changes affect all foreign parents considering surrogacy in India, but hit gay dads particularly hard.

Although the new draft Indian law itself has not yet been enacted, it seems that it is being brought into force by the back door. The Indian authorities have started requiring foreign parents obtain a ‘medical visa’ to travel to India for the purposes of engaging in a surrogacy arrangement (and this covers trips involving any treatment, including leaving sperm samples).

What has happened this week, as reported in the Times of India, is that Indian surrogacy clinics have been notified that they must register with the Indian Council for Medical Research (ICMR) and ensure their foreign patients have the visa before giving any treatment. Surrogacy clinics are, in other words, being given responsibility for enforcing the new visa requirements.

What are the new requirements?
In practice, UK parents are in a better position than those in other countries where surrogacy is not recognised at all, but gay dads and unmarried couples will not be eligible. To get the medical visa for surrogacy in India, the Indian authorities say that:

1. The parents must be a man and woman, married for at least 2 years.

2. The parents’ home embassy must provide a letter confirming that their country recognises surrogacy and that any child born will be entitled to enter the parents’ home country. The British High Commission has helpfully issued a letter for this purpose which is available on their website here.

3. The couple must undertake to care for the child.

4. The clinic must be recognized by the Indian Council of Medical Research (ICMR).

5. The couple must have a notarised surrogacy agreement with their surrogate mother.

6. The couple must be informed that they need an exit visa under Indian law to take their child out of India after the birth and, to get that, they must have taken custody of their child and discharged all their responsibilities as per their surrogacy agreement.

So what now?
Many parents we work with go to the US for surrogacy, where there is a much more established legal framework which is supportive of all types of families and of surrogacy generally. For those with a more limited budget, the UK is probably the safest option, albeit that it has its own challenges. Other international destinations (places like the Ukraine) are likely to revive as a result of these changes in India.

Parents contemplating international surrogacy also need to bear in mind that, even without these new Indian law issues, international surrogacy law is complicated and that the UK legal position does not automatically reflect the law in the destination country. There is more information about the UK legal issues associated with international surrogacy on our website.

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The Independent reports rise in international surrogacy

Tuesday, January 15th, 2013

The Independent newspaper has criticised the sharp rise in international surrogacy arrangements, quoting Natalie on UK surrogacy law. Responding to a study newly published in the Journal of Social Welfare and Family Law, the Independent says that international surrogacy urgently needs regulating to prevent child trafficking, just like inter-country adoption a generation ago. It points to the rise in rich westerners accessing surrogacy in poor countries like India, and highlights how UK law fails to stop the practice and simply gives parents a ‘rap on the knuckles’ after the event.

At NGA we are proud to have helped parents win legal parental status after international surrogacy. We believe it is the right outcome for much-wanted families who are trying to navigate outdated law. The process is not easy, and the UK court applies great care and sophistication, keeping its focus quite rightly on the welfare of the child.

Surrogacy is very different from adoption, because it involves parents conceiving their own biological child. Collaborative reproduction can be positive – a win-win process which addness richness to the lives of all involved, including the cherished child. But there are potential problems too. The worry is that women will be pushed (whether by exploitative intermediaries or by environmental factors like poverty) into becoming surrogate mothers without fully understanding the risks or without free consent. This is what regulation needs to deal with, not placing restrictions on parents.

And before we start criticising countries like India, let’s get our own house in order. The lack of up to date law and regulation in the UK is what is driving parents abroad for surrogacy. We don’t need to stop parents crossing borders; we need to make surrogacy safer, easier and better regulated in the UK so they don’t need to.

You can read the Independent article here (and a follow up article in the Daily Mail). You can find out more about international surrogacy law and our campaigning on surrogacy from our website.

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Maternity leave rights to be introduced for parents through surrogacy

Thursday, November 15th, 2012

Some days I feel very proud of what we do here, and today is one of those days. After a campaign of more than five years, I am thrilled to post that the government announced yesterday that they would be introducing adoption leave (equivalent to maternity leave) rights for parents through surrogacy.

Until now, parents whose biological child is carried by another woman have had no rights to time off work when their new baby arrives, unlike parents who give birth or who adopt a child. This has been grossly unfair, and resulted in parents through surrogacy having to quit their jobs or go back to work if their employer does not (or cannot) give leave on a discretionary basis.

The new rights will be introduced as part of the government’s maternity leave and adoption leave reforms, expected to come into force in 2015. Although the full detail has yet to be confirmed, we know that parents through surrogacy will be entitled to two antenatal appointments during the pregnancy, and adoption leave after the birth. This will be available to all couples eligible to apply for a parental order, including heterosexual parents and gay dads. Surrogate mothers will also retain their right to maternity leave to recover from giving birth.

More information is available in the government’s response to the consultation on modern workplaces which says:

We propose that intended parents in surrogacy cases who satisfy the criteria for a Parental
Order and intend to apply, or have applied, to a court for a Parental Order will be entitled to
leave and pay on the same basis as adopters who are eligible for statutory adoption leave
and pay, subject to the qualifying conditions and evidential requirements. In addition, both
intended parents will be entitled to take unpaid time off to attend two antenatal appointments
with the surrogate mother carrying their child.

What is so exciting about the change, as well as the practical legal rights it will introduce for new parents, is that this is the very first time in UK legal history that parents through surrogacy have been recognised as having any rights in advance of the birth of their child. This is a very significant recognition that surrogacy is real and here to stay, and hopefully a first step towards wider reform of our surrogacy laws.

There is more information about surrogacy law on our website, and more about our campaigning work.

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Posted in fertility law, gay men surrogacy, international surrogacy, Natalie Gamble Associates news, same sex parenting, UK surrogacy, Uncategorized | Comments Off

First single dad to become a parent through UK surrogacy

Monday, November 5th, 2012

Today’s ITV Daybreak featured Kyle Casson, a single dad who we are proud to be working with on his journey to become the first single parent through surrogacy in the UK. Well done to Kyle for speaking out so bravely, and for being such a great a champion for solo dads.

Kyle spoke characterically warmly about his plans to be a father. He has always wanted children, and wants to do it in his twenties (with active grandparents) rather than waiting for a partner who may not come along. He has planned things carefully, is financially secure, has the enthusiastic support of his family, and has a surrogate who wants to help him. You can see Kyle talking about his story on ITV Daybreak here.

So what does the law say?
The law in the UK has never made it illegal to enter into a surrogacy arrangement as a single father. But it doesn’t make it easy either. Most parents through surrogacy (including gay dads and unmarried couples) can apply for a ‘parental order’ after their child is born. This is an order made by the family court which gives the intended parents a new birth certificate and extinguishes the responsibilities of the surrogate mother. Single parents are not, however, eligible to apply.

This means it is perfectly legal for Kyle to have a child through surrogacy in the UK, but the normal solution for families created through surrogacy (designed to give lifelong security and certainty for the child) is not available. He will have to get creative with using law designed for other purposes to secure his family and resolve the position of his surrogate – adoption being the best alternative to a parental order if the family court will agree to help.

Our call to action
On behalf of Kyle and the increasing numbers of solo prospective dads we are advising (some going abroad for surrogacy, others entering into co-parenting arrangements) we at NGA call for parental orders to be made available to solo parents. The law has already been extended, in 2008, to allow gay dads and unmarried couples to apply, and it is now time to allow single parents to apply too. This would bring the law into line with adoption law, which allows single parents to become adopters, and with reproductive law for women which was specifically amended in 2008 to allow solo mums to conceive through donor insemination.

We frequently see heartbreaking cases caused by the denial of surrogacy to single parents. A change to the law would benefit not only prospective solo dads like Kyle, but also single women who have survived cancer and need the help of a surrogate to carry their child, and widowed fathers who want to use embryos in storage, just as widowed mothers are able to do.

And what do we say to people (like the lady on Daybreak with Kyle this morning) who say that such solo parents who want to have children are selfish? Well, wanting to be a parent is something most human beings experience, so it comes down to whether children suffer harm if raised without a mother and a father. This is an old question for non-traditional families, and the answer (backed by long research, including by the Centre for Family Research at Cambridge University) is that children in deliberately created non-traditional families (including solo parent families) have good outcomes, and are in a very different position from children whose parents have separated. It is the quality of the relationships which matters, and not the gender or number of the parents.

Find out more from our website about surrogacy law for single parents, or about the options for gay and solo dads.

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Should surrogate mothers still have an absolute right to change their minds?

Tuesday, October 23rd, 2012

Natalie has written a comment piece for Bionews criticising the unchallengeable position surrogate mothers are currently given by UK surrogacy law.

The law in the UK has long provided that the woman who gives birth is the legal mother. In surrogacy cases, the intended parents (one or both of whom must be the biological parents) can apply to the family court to have parenthood reassigned to them, but they are entirely dependent on the surrogate and her husband/civil partner giving their consent. If it is withheld, they cannot become the legal parents. Conversely, if the intended parents do not take responsibility, the surrogate has no means of holding them both legally responsible for the life they have created.

Natalie criticises the law as being outdated in a modern age in which surrogacy is becoming more common. Very few arrangements do go wrong (a proportion of roughly 0.02%) and where things run to plan, the current law means that parental responsibility is left in the wrong hands for far too long, contrary to everyone’s wishes and the best interests of the child. In the rare cases where things go wrong, the courts in practice decide care arrangements flexibly on a best interests basis, but legal parentage can remain unresolved forever.

It is time for us to introduce law which deals with surrogacy in a much more sophisticated way, understanding that it is a collaborative process in which the rights and responsibilities of everyone involved – the surrogate, her partner, the intended parents and the child – all need to be carefully balanced. This is what both surrogates and parents want, and what is in the best interests of children born through surrogacy.

You can read Natalie’s comment piece Should surrogate mothers still have an absolute right to change their minds? or find out more about surrogacy law from our website.

Progress Educational Trust, which publishes Bionews, is a wonderful charity which does crucial work informing debate on assisted conception and genetics. You can donate to PET or subscribe to Bionews by clicking here.

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International surrogacy – judge awards parenthood to gay dads after Indian surrogate ‘disappears’

Wednesday, October 3rd, 2012

The Telegraph and Daily Mail have today reported the international surrogacy case of D and L (surrogacy) 2012. The case marks a legal first: the court agreeing to make a parental order after the surrogate mother could not be found to give her consent. We are proud to have worked with the parents on this case to help win legal security for their family.

What happened?

A UK same sex couple had twin boys through an Indian surrogacy arrangement. They had taken legal advice at the outset and knew they would need their surrogate’s consent, after the birth, to become the legal parents under UK law.

They became concerned during the pregnancy that their clinic might not be as helpful as they had thought, so we wrote to the clinic explaining what was needed, and the clinic confirmed they would help. However, after the birth, the clinic refused to secure the surrogate’s notarised consent. As a final insult, our clients were sent a couriered package which they thought finally contained the consent document they desperately needed – instead it contained a single sheet of paper with a sketch of an obscene gesture. They then tried to track their surrogate down themselves, but the address they had been given for the surrogate was a false one and they could not find her.

They applied to the UK court for a parental order and asked the judge to help. Focusing on the need to give the boys legal security with their parents throughout their lifetime (and our clients’ extensive efforts to obtain the required consents), Mr Justice Baker in the High Court made them their sons’ legal parents without the surrogate’s confirmed consent.

What does the law say?

UK law requires parents who have a child through surrogacy to make an application to the family court, after the birth, for a ‘parental order’. Once granted, a parental order makes them their child’s legal parents in the UK.

The criteria for getting a parental order are strict and include that the surrogate mother (and her husband if she is married) must consent to the order being made ‘fully, freely and unconditionally’. The surrogate’s consent is ineffective if given less than six weeks after the birth – the same rule that applies if a woman gives up a child for adoption.

There is, however, a limited exception: consent is not required if the surrogate ‘cannot be found’. That power has always existed in the law, but until now has never been exercised.

What significance does the case have?

Mr Justice Baker made it clear that the power to waive consent should not be exercised lightly. Before making a parental order without the surrogate’s consent, the court must take into account the extent of efforts made to find her, and whether there is any other evidence indicating she would have been likely to have consented if found.

It is worth noting that this case does not involve a parental order being given against the surrogate’s wishes. Surrogate mothers have always under UK law had an unchallengeable right to change their mind. Whether this remains appropriate is another question but this is not what this case was about.

What to know if you are considering Indian surrogacy

The parents in this case did everything they should have done: they understood the legal processes they would need to follow, and had asked their clinic to help them comply with the requirements of UK law, which they promised to do. The fact that things went wrong was not their fault, and they were let down badly by their clinic.

While the case is, in our experience, very unusual, it does highlight that doing surrogacy in an unregulated jurisdiction is a risky business, and that parents place an enormous amount of trust in a clinic or agency a very long way away.

If you are considering Indian surrogacy, what can you do to protect yourselves?

1. Work with a reputable clinic which has a track record dealing with UK parents successfully and helping get the requisite consents.

2. Make sure that everyone understands from the outset that there will be papers for the surrogate (and her husband) to sign after the birth.

3. If possible, have direct and personal contact with your surrogate yourselves so that you are not entirely dependent on your clinic (although in practice most good clinics can make the process significantly easier by facilitating things for you).

There is more information about Indian and international surrogacy on our website.

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Pressure mounts on the government to give surrogacy families equal rights

Sunday, September 23rd, 2012

A joint claim has been lodged at the High Court challenging the lack of maternity leave rights for families through surrogacy. Surrogacy UK and a mother directly affected are together seeking a declaration from the High Court that the current law is unfair.

The issue is that UK parents who have a child with the help of a surrogate mother do not have rights to time off work to care for their new child, while parents who give birth or who adopt do. As a result, the mother bringing the claim (known only as RKA) was denied maternity leave rights by her employer to care for her newborn child, and was then made redundant while on unpaid leave.

Surrogacy UK, which has brought the claim together with her in its capacity as a leading representative of many UK families, says: “We’ve made this claim as the leading surrogacy organisation in the UK, reflecting our responsibility to promote and protect the interests of our members and all others involved in surrogacy. Put simply, there can be no reason to treat parents of children born via surrogacy any differently from any other parent looking after a new-born. The Government has a responsibility to ensure that all parents have rights to a family life and the best possible start for their child.”

Merry Varney from law firm Leigh Day & Co, who is representing RKA and Surrogacy UK, says: “The Government has a positive obligation under Article 8 of the Human Rights Act to protect surrogate parents to ensure respect for their private and family life and a positive obligation under Article 14 to avoid discrimination.”

The anomaly which denies maternity leave was raised in Parliament earlier this year, when John Healey MP called for equal maternity leave rights for mothers through surrogacy. His constituent Jane Kassim had also been denied maternity leave after her cousin Amy carried her and husband’s twins (read more about what he said here). With the Department of Business Innovation and Skills currently reviewing the law on maternity rights, there is an opportunity to address the problem.

While surrogacy was historically a rare phenomenon which only affected a tiny handful of families, that is no longer the case. The numbers of parental orders (the orders which make parents through surrogacy the legal parents) stood at 138 last year, up from 58 just two years ago.

We at Natalie Gamble Associates have been campaigning to end discrimination against surrogate families for many years. As well as the employment law issues, other problems arise from the fact that it takes so long (often up to a year after the birth) for the parents to win legal recognition. There can be problems with medical consent, not to mention severe difficulties over immigration where children are born through surrogacy abroad. There is also no proper regulation of surrogacy services in the UK, while surrogacy thrives as an industry in many places abroad, driving more and more parents to go abroad. Surrogacy law in the UK desperately needs updating and we hope dealing with the employment discrimination will be just the first step.

For more information see:

Surrogacy UK press release

Leigh Day and Co press release

Sunday Times article (subscription required)

John Healey MP speaking in Parliament in April

More from our blog about our long campaign to end discrimination in maternity leave rights

More from our website about surrogacy law and why it needs reviewing

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