NGA Blog

Ever considered a pre nuptial agreement?

ngateam — Tue, 04 Nov 2014 12:42:30 +0000

Richard has recently written an article looking at the benefits of pre and post nuptial agreements for same sex couples for online gay magazine Gay Star News. Richard’s article looks at the financial side of things when considering marriage or civil partnership for same sex couples. The article explores the history of nuptial agreements in the UK and how they are increasingly recognised and widely used. Such agreements can be effective tools for couples and can be very useful in preventing any future disputes that may arise upon separation.

You can read the article here and for more information about pre and post nuptial agreements you can contact Richard at Richard@ngalaw.co.uk

Court unlocks ‘nonsensical’ law for surrogacy parents who miss six month deadline to secure parental status

ngateam — Fri, 03 Oct 2014 01:00:30 +0000

Until now, intended parents could only apply to become legal parents within six months of the birth of their child. But in a key ruling today, the President of the High Court Family Division, Sir Justice Munby, has said that even though the law states that an application must be made before a child is six months old, the court can accept late applications. In powerful words, he has criticised the strictness of the law, saying:

“Can Parliament really have intended that the gate should be barred forever if the application for a parental order is lodged even one day late? I cannot think so. I assume Parliament intended a sensible result. Given the subject matter, given the consequences for the commissioning parents, never mind those for the child, to construe the law as barring forever an application made just one day late is not, in my judgment, sensible. It is the very antithesis of sensible; it is almost nonsensical.”

The case involved a child born through surrogacy in India. The British parents thought they were the legal parents (understandable given that they were registered as such on the Indian birth certificate) but in fact UK law did not recognise their parenthood, instead treating the Indian surrogate and her husband as the parents. This only came to light when the British parents later separated, and the family court handling their divorce realised that they had missed the mandatory deadline for applying for a UK parental order – the court order which reassigns parenthood in surrogacy cases.

Following previous cases, everyone thought that it was too late to ask the court for a parental order. But Elizabeth Isaacs QC, representing the child, argued that the court should be able to make a parental order notwithstanding the hard deadline. The President agreed, stressing how significant a parental order was for the child. He said: “[This] goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who his parents are… A parental order has, to adopt Theis J’s powerful expression, a transformative effect, not just in its effect on the child’s legal relationships with the surrogate and commissioning parents but also in relation to the practical and psychological realities of X’s identity”.

The case is significant for the thousands of other surrogate children living with UK parents who are not their legal parents. Working at the coal face of international surrogacy, we are painfully aware that this is not an isolated case. Many parents do not properly address the legalities after surrogacy abroad (whether innocently or knowingly), and the long term consequences for their children are potentially grave, with looming problems over inheritance, guardianship, nationality, financial maintenance, medical decision-making and many other basic rights. We know there is a big gap between the numbers of parental orders being made (213 in 2012) and the numbers of children being born through surrogacy to UK parents (reportedly 1,000 cases per year in India alone). For children living in the black hole of unresolved legal status, today’s ruling is welcome because it means the door may not be closed to a remedy.

The case also demonstrates, yet again, just how out of date the UK’s surrogacy laws are. A framework which makes the surogate and her husband the legal parents and then reassigns parenthood after the event might have been good enough when there were only a handful of surrogacy cases, all in the UK. But in the age of widespread UK and international surrogacy, the law is creaking under the strain. Again and again the family court is having to stretch the law to breaking point, and it makes a mockery of the rules.

That is why we are campaigning for a system of pre-birth orders in the UK. We want children born through surrogacy to UK parents to have a secure legal identity within the right family from the moment of their birth. As this case shows, our current law is leaving children vulnerable and disenfranchised, and reform is long overdue.

Find out more about international surrogacy law from our website and about how we think UK surrogacy law needs to change.

You can read the full judgment from Re X (a child) (surrogacy: time limit) [2014] EWHC 3135 (Fam) here.

You can also read Natalie’s interview with Lexis Nexis about the significance of the case, and why it shows we need legal change.

Surrogacy transformed my life, but is it morally acceptable?

ngateam — Thu, 02 Oct 2014 08:37:00 +0000

In 2011, the NGA team helped Alice Jolly and her husband to complete their family through US surrogacy after an incredibly difficult journey of repeated miscarriages and stillbirth. Alice is a novelist and playwright (and author of soon-to-be published novel Dead Babies and Seaside Towns), and has written a guest blog for us, explaining why her experience has brought her to think that commercial surrogacy in the UK is the right ethical and moral choice.

By Alice Jolly:

If surrogacy is going to exist then shouldn’t it be fairly remunerated?

Surrogacy is everywhere. From the broadsheets to the day-time television sofa – everyone has a view, especially in light of the recent baby Gammy case. But there is one group who keep silent, who don’t speak to journalists and who mind what they say, even to good friends. Those are the people who have direct experience of surrogacy.

I am one of them. I would probably be wise to keep my mouth shut – those who are opposed to surrogacy can be virulent – but it is hard to stand by and watch the mountain of misinformation about surrogacy grow. Again and again commentators focus on the one surrogacy journey that fails, without reporting on the 99% that succeed.

That’s why I decided to put my head above the parapet and write a memoir about our experience. We are among the 99%, and surrogacy transformed our lives. Although we had a living son, we had lost four babies in five years – a stillborn daughter, four miscarriages. IVF had failed, and our attempts to adopt were bogged down in bureaucracy.

Before surrogacy we were shattered, and now we are happy. Lots of people assume therefore that I must be a passionate advocate for surrogacy. On the contrary – I’m a cautious one. I believe that surrogacy is a desperate measure for desperate times. No-one should be doing it unless they have no other option, and anyone who thinks it is easy is a fool. It took four law firms and a trip to the High Court for us to bring our daughter home from the States, where we had paid a woman to carry our egg donor baby.

Sometimes, I still struggle with whether surrogacy is morally suspect. What is at the root of society’s distrust and discomfort over it? It seems to be an innate feeling lots of people have – that a woman should not be able to give birth and then hand the baby over to someone else, despite the fact that most surrogates are now gestational surrogates and so have no genetic link to the child they carry.

Too often, surrogacy is something that poor women do for rich women. My husband and I went to America because we felt that women there would not be exploited… but, it’s easier to be moral if you’re well off. When we were in the States with our surrogate, again and again I asked her: ‘Do you really want to do this?’ Even at the time of my daughter’s birth I was still unconvinced. How could she be okay with it? How could she be doing this momentous thing for me? It was only in the long days she and I spent together afterwards that I began to understand.

Our surrogate Mum is intelligent and wasn’t struggling with money. She had plenty of other choices. She really wanted to be a surrogate and she enjoyed the experience so much she’s doing it again. Should the law stand in the way of a generous woman?

Of course, it’s not as simple as that. There is a thornier problem with surrogacy, to do with money and class. Too often, surrogacy is something that poor women do for rich women. My husband and I went to America because we felt that women there would not be exploited, but we could only go there because we had enough money. That enabled us to avoid the income inequalities which exist in India or the Ukraine and to ensure we didn’t take advantage of anyone. As with lots of things, it’s easier to be moral if you’re well off.

The English legal system gets around the question of money by banning commercial surrogacy. Some would say this is right – that it’s a ‘Good Thing’ for us Brits to take a moral stand on it – but the UK system means we have a situation where a woman does the most important job ever, for free. Is this selfless love? Or slave labour?

If surrogacy is going to exist then shouldn’t it be fairly remunerated? It doesn’t have to be a question of love or payment – both can exist side by side, as I learnt from our surrogate. I know that I wanted to pay her. It can be hard to live with the knowledge that another person transformed your life and that nothing – absolutely nothing – you do will adequately compensate them. How much worse would I feel if she had done it for free?

One thing is for sure: international surrogacy isn’t going away. The internet enables anyone to contact surrogacy agencies across the world. We couldn’t stop it even if we wanted to – if a couple arrive at Heathrow holding a baby which is genetically linked to one, or both of them, are they really going to be refused entry?

It’s complicated, going through the arguments I’ve considered a thousand times. But now I am about to go and pick up my living, lovely daughter from nursery. She is called Hope, and as soon as I see her tiny, laughing face it doesn’t seem complicated at all. She is what leads me to conclude that the UK should create a system similar to that in the US – a system which is highly legalistic, but promotes fairness and protects everyone. A system which might encourage people to stay at home, rather than go to developing world.

Let’s allow those generous women who want to be surrogates fulfil their desires, and give them legal clarity and fair remuneration. Let’s support them in giving a gift, the value of which can’t be expressed in words, let alone money.

Alice is currently crowdfunding her memoir – Dead babies and seaside downs – with Unbound. 50% of the proceeds of the book will be donated to The Stillbirth and Neonatal Death Charity (Sands). You can find out more and support the book here.

Twitter: @JollyAlice

Baby Gammy case sparks debate about surrogacy law reform

ngateam — Fri, 22 Aug 2014 18:19:23 +0000

We have been busy over the last few weeks speaking to the media about the baby Gammy case and why surrogacy law needs to be brought up to date. Amidst a storm of media discussion about the law and ethics of international surrogacy, Richard was interviewed by the Guardian, Helen by BBC World Service and Nicola was interviewed by the Telegraph, Sunday Times, BBC TV news and on not less than 15 different BBC Radio programmes including Radio 5 Live and the prestigious Radio 4 Today Programme. Nicola was also interviewed as an expert witness for leading ethics discussion programme The Moral Maze.

The case that hit the headlines involved a Thai surrogacy arrangement and twins who were born to an Australian couple. One of the twins, known as Gammy, had Down’s Syndrome and was allegedly left in Thailand with his surrogate mother whilst the parents took his twin sister back to Australia. This triggered outcry and a fierce global debate about how we can better regulate international surrogacy arrangements.

Cases like this are rare, and we work with hundreds of parents who conceive much-wanted children through surrogacy. It is always important to keep in perspective that surrogacy is far more often a positive experience, which leads to the creation of cherished families.

But there is currently no global system of laws governing surrogacy. The gaps between national laws can leave children exposed because the parents who commission their birth have no legal responsibility for them. That is why we are campaigning to see UK surrogacy law changed, to recognise parents who conceive through surrogacy as legal parents from the very start.

We also want to see a properly regulated system for surrogacy in the UK so that fewer parents need to go overseas. Restrictive surrogacy laws in countries like Australia (and the UK) are driving increasing numbers of parents to conceive through surrogacy in third world countries like Thailand and India, where there are often ethical concerns and a tenuous legal backdrop which can change rapidly. In the wake of baby Gammy, we are managing anxious clients concerned about whether the Thai government’s inevitable crackdown will jeopardise their ability to bring their expected children home.

You can read more about international surrogacy law here and about how we think UK surrogacy law needs to change.

Richard writes for Gaystarnews about disputes between same-sex parents

ngateam — Thu, 24 Jul 2014 13:42:47 +0000

Richard has written an article about the issues for same-sex parents who break up for online gay magazine Gaystarnews. As part of their new Family Channel, Richard was asked to explain some of the issues and complexities for same-sex parents. His article looks at how the law on parenthood matters when same-sex parents separate, reflects on whether biology has an impact on who gets greater care, and explains some of the financial issues which cause problems between same-sex parents and in known donor disputes.

You can read the article in full here or find out more from our Knowledge Centre about family disputes for gay couples and lesbian couples.

International surrogacy: UK High Court awards parenthood to couple living in France

admin — Sat, 24 May 2014 18:35:53 +0000

In its latest published international surrogacy decision, the High Court has awarded a British-French couple living in France a parental order in respect of their son born through international surrogacy. The case makes clear that you don’t need to live in the UK to get a parental order, sets out the rules on domicile for expatriate parents, and issues a warning about pitfalls under UK adoption law.

The case of CC v DD (2014) involved a British mother and French father (represented by our team) who conceived through surrogacy in Minnesota, USA. Under UK (and French) law the US surrogate was the legal mother, and the child was neither British nor French. The parents (who had already secured their parentage in the US through a series of orders including a step-parent adoption order in favour of the intended mother) applied for a parental order to resolve their parentage in the UK and to acquire British nationality.

Could the parents, who lived in France, get a UK parental order?

As the parents lived in France, they could only obtain a parental order if the mother retained her English ‘domicile’. Domicile involves, not just citizenship or residence, but a much wider assessment of where a person’s permanent home is. The court heard independent argument from a government-appointed lawyer, who backed our case that the mother was still UK domiciled. Mrs Justice Theis agreed that, because the British mother had a clear intention to return to live in the UK and was tied to France only by her husband, she had not acquired a domicile of choice in France which would have displaced her UK domicile of origin.

Various cases (including AB v SA (2013)) have previously considered domicile issues for surrogacy parents who have settled in the UK but had their origins elsewhere. This is the first published surrogacy case to consider how the law works for parents who have left the UK. We are pleased to have this clarity, as we know it will be of comfort to the many other expatriate parents we work with who wish to secure their UK legal position.

The perils of using US adoption as a remedy for surrogacy

The other new issue in this case was that the parents had conceived in a state which ratified US parentage by means of a US step-parent adoption order. The High Court urged caution to other parents, since UK adoption law makes it a criminal offence for parents to apply for adoption overseas without prior approval from the UK authorities. In fact in this case there was no criminal offence because the parents lived in France so they were not caught by the law. However, the same would not be so for other UK-resident parents who obtained a US adoption order.

Indeed, in another case published together with this one (Re G and M (2014)) Mrs Justice Theis dealt with a UK-resident same sex couple who had obtained a US adoption order in breach of the law, albeit entirely innocently. She therefore decided to draw this issue to the attention of the Department of Health, noting that UK law is currently criminalising parents through surrogacy who wish to act in their child’s best interests.

It is yet another example of how inappropriate the UK’s surrogacy laws are for handling the modern realities of global surrogacy, and how desperately reform is need.

Find out more about international surrogacy law and our surrogacy law services. Find out more about how we think surrogacy law needs to change.

Court of Appeal rules for non-birth mother in lesbian parenting case

admin — Fri, 23 May 2014 21:34:58 +0000

In an important decision on same sex parenting, the Court of Appeal has ruled in favour of a non-birth lesbian mother seeking parental responsibility (the legal authority to be involved in decision-making), despite her lack of legal parenthood.

The non-birth mother had provided her eggs to her former partner, who conceived (with donated sperm) and gave birth to twin girls in 2008. The means of conception split biological and gestational parenthood: one partner was the birth mother, the other the genetic mother. However, since the conception took place before 2009, only the birth mother was a legal parent; the genetic mother had no parental rights in law.

The non-birth mother looked after the children at home for more than four years while the birth mother returned to work. The non-birth mother also carried a third child using the remaining frozen embryos, a full genetic sibling to the older children.

After the couple separated, a dispute arose about the arrangements for the twins, now age 5. It was agreed that the children should live with the birth mother and have regular contact with the non-birth mother. The disagreement was over whether the non-birth mother should also share parental responsibility. The lower courts initially denied the non-birth mother’s application for a shared residence order (which would give her parental responsibility), and she appealed.

The Court of Appeal has now found for the non-birth mother and overturned the lower court’s decision. The court has said that insufficient weight was given to the non-birth mother’s connection with the children, including the biological connection the children have both with her and their younger sibling. The court has been ordered to reconsider its decision with this guidance in mind.

This case is important because it shows that, even where the law excludes someone’s legal parenthood, the family court can still give them rights and status if they have a biological connection or a parental relationship with a child. For lesbian couples, the law has changed significantly over the past ten years which means that complex legal issues around parenthood can arise for those with children. While cases like this muddy the waters of what may seem clear legal boundaries, they also create flexibility enabling those who have acted as parents to be given the rights of parents.

You can read the case of Re G (2014) in full or find out more about disputes between lesbian parents who separate.

Richard published in The Review on mediation and fertility law disputes

admin — Tue, 29 Apr 2014 09:45:28 +0000

Mediation is an increasingly common way of resolving family disputes, and can be an effective alternative to lengthy and stressful court proceedings in appropriate cases. Richard, who is a trained Resolution mediator, was recently asked to write an article for the Review (a journal for family lawyers) on mediation in fertility law cases. His article has been published in The Review’s edition focussed on mediation.

A lot of our disputed cases involve fertility related issues such as known donation disputes, surrogacy disputes and issues relating to parentage when same sex families break down. The flexibility of mediation lends itself to the differing dynamics of the structure of these types of families and can help to address sensitive issues. Mediation is a voluntary process and allows families in dispute to reach their own solutions with the assistance of a trained mediator, rather than have the uncertainty that can happen in court.

You can read the article here. For more information about mediation and family disputes and the services we offer please contact Richard at Richard@nataliegambleassociates.com

HFEA reports all time high for lesbian couples conceiving at UK fertility clinics

admin — Sun, 30 Mar 2014 20:51:30 +0000

The UK’s fertility regulator, the Human Fertilisation and Embryology Authority, has published its annual report on statistics and trends in UK fertility treatment. One of the headline points this year is a 36% rise in the numbers of lesbian couples conceiving through IVF and donor insemination at UK fertility clinics.

As Natalie told the Independent and Family Law Week, the increase no doubt reflects recent changes to the law which have enabled lesbian couples to be named on birth certificates together, and enshrined equality principles in both service provision and NHS funding. We have come a long way since fertility clinics routinely denied fertility treatment to anyone apart from married couples, and the UK is now an excellent place to start a family together as a same sex couple.

For the increasing numbers of lesbian couples having babies, getting clued up about the law in advance is always sensible. Couples who both want to be legal parents need to conceive through a clinic or marry/register as civil partners before they conceive. The law dictates when and how information about clinic sperm donors becomes available. And for those conceiving with known donors (whether at a clinic or privately at home) there can be complex legal issues if the relationships do not work out as envisaged. There is a wealth of free information for lesbian prospective parents on our website.