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 IncIt 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
UK
• 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
Natalie writes editorial in the Guardian: Can the UK deliver surrogacy reform?
Wednesday, December 29th, 2010Natalie Gamble has written a comment piece for the Guardian, and you can join the discussion about possible reforms to the UK’s surrogacy laws. Do support us with this – we need your help!
Here’s the link: http://www.guardian.co.uk/commentisfree/2010/dec/29/elton-john-david-furnish-surrogacy-law?
And here’s our article in full:
After the birth of Elton and David’s son, can the UK deliver surrogacy reform?
Elton John and David Furnish’s announcement of the birth of their son through a Californian surrogacy arrangement follows hot on the heels of a high court decision allowing payments for foreign surrogacy just a few weeks ago. Brits building their families through surrogacy seems to be a growing trend, prompting some conservative groups to cry “baby buying” and to raise concerns about the treatment of children as commodities.
But as those affected by surrogacy know, this is far from the reality. Having advised hundreds of families created through surrogacy, I know that parents do not choose that option lightly. The vast majority have heart-wrenchingly long and painful journeys behind them (tales of miscarriages, stillbirths and gruelling years of IVF disappointments). For gay couples, surrogacy gives the hope of a much-wanted family, and arrangements are entered into with planning and care. Surrogate mothers take pride in helping to create families and, whether or not they are paid, the parents involved do not treat the enormous and life-changing gift they make lightly. Children born through surrogacy arrangements are far from commodities or accessories.
The bigger question here is not whether surrogacy is a good thing – and my experience suggests that properly regulated surrogacy is unequivocally good for families – but whether our laws are up to scratch for the 21st century.
UK surrogacy law has its roots in the 1980s and has always been a fudge. Surrogacy is restricted (advertising and commercial agencies are banned) but endorsed where arrangements are deemed “acceptable” (most comfortably, where everyone consents and no more than “reasonable expenses” is paid). It isn’t a workable compromise, since there is little control in practice of what happens when people go outside the “acceptable” framework.
Over the past 20 years, other countries have pinned their colours to the mast more confidently. Many Catholic European countries have prohibited surrogacy altogether (although these restrictions are increasingly proving untenable and reform is afoot in many places). At the other end of the scale, certain US states, Ukraine and India allow enforceable commercial surrogacy. In California, couples have for many years been able to enter into a binding surrogacy agreement with the help of a professional agency (having undergone psychological counselling, legal advice and medical vetting) and obtain a court order during the pregnancy that allows the intended parents to be named on the birth certificate from the outset.
The patchwork global approach to surrogacy drives people to cross borders, and the disparity of law creates grave (and often unforeseen) problems for the families involved. Most starkly, in a landmark 2008 case , much-wanted twins born to a British couple were left stateless and parentless in Ukraine (and at risk of being placed in a Ukrainian orphanage) because neither Ukrainian nor British law recognised its own citizens as the parents. Whatever we think of surrogacy and the practices of other countries, surely everyone would agree that this is unacceptable.
UK law on parenthood in surrogacy cases is ridiculously complex, and (being designed to exclude the status of biological donors in donation situations) very often makes the surrogate and her husband the parents to the exclusion of the intended biological parents. The parents (including gay couples as from April 2010) can apply to court to remedy the situation, but the post-birth “parental order” is a clumsy retrospective tool.
Our current legal system leaves children in limbo for far too long (often up to a year while the court application is processed), in the care of parents who technically don’t even have the legal authority to take them to the doctor. Intended mothers sometimes have to give up their jobs to look after their newborn children because their lack of recognition means they have no rights to maternity leave. The court cannot extend deadlines if missed (no matter how unwittingly). Applications from single parents are prohibited, which is disastrous if one intended parent dies unexpectedly during a surrogate pregnancy (believe me, it’s happened). And that’s before we even get started on the conflicts of law and immigration issues that arise where parents go abroad for surrogacy.
If there is to be any reform, the most tricky issue to resolve will undoubtedly be payments: in the UK surrogates are supposed to be reimbursed for their expenses only (although in practice the English court can, and does, authorise payments which exceed expenses). It is not illegal for Brits to pay more than expenses, nor to travel to a country with a more liberal regime. While we may prefer surrogacy to be entirely non-commercial, we need to recognise the global realities here, and also to understand with greater sophistication that payment and altruism are not necessarily mutually exclusive.
UK surrogacy law is riddled with flaws and desperately needs reconsideration. Yes, surrogacy involves some sensitivities and yes, we need to take care to protect the interests of all those involved and ensure there is no exploitation. But if surrogacy law is to be reviewed, we need to look at this in a sensible way that understands the subtleties and complexities of real surrogacy arrangements. Let’s embrace surrogacy and recognise the hope and wonderful gift that it brings, and let’s celebrate and support families created in this way. I, for one, send Elton and David my wholehearted congratulations and wish them every bit of luck on their parental journey.
Tags: California surrogacy, Elton John baby, Guardian comment, international surrogacy law, surrogacy law
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