NGA was proud to be nominated for not just one but two of the prestigious awards – Family Provider of the Year, and Diversity Champion of the Year – at an event attended by guests including Stephen Fry, Clare Balding, Peter Tatchell and Ben Summerskill.

Here’s what G3 said about us:

Natalie Gamble Associates is known for its pioneering work pushing the boundaries of the law for same sex parents. The team has helped thousands of alternative families, including acting in the groundbreaking cases which have made UK law on donor conception and international surrogacy. NGA campaigns on behalf of alternative families, successfully defending the right for same sex parents to be named on birth certificates together back in 2008, and recently winning a long campaign to give gay dads through surrogacy equal maternity leave rights.

Find out more about our work with same sex parents or about our team, or contact us for help or advice.

* clarify what UK clinics should say to surrogacy patients, and
* update clinic procedures and forms for surrogacy.

The HFEA voted to make these changes (following advice from NGA and its own lawyers) at its meeting on 20 March 2013 and will now undergo a period of consultation on the practicalities, before the new Code of Practice is introduced on 1 October 2013. This includes a workshop for clinics and professionals practising in surrogacy, to be held at the HFEA on 30 April 2013.

We congratulate the HFEA on a very sensible decision, which will mean clearer guidance for parents and clinics dealing with increasing numbers of surrogacy cases. In particular, it will be made clear that where a surrogate is unmarried, one of the intended parents (whether gay or straight, and whether or not a biological parent) can be named on the child’s initial birth certificate together with the surrogate. This approach will make the HFEA’s guidance entirely consistent with longstanding practice at register offices and in the family courts.

You can find out more about the HFEA meeting on 20 March here, and there is more on our website about surrogacy law.

Note added – Natalie has written an article for Bionews on this issue ‘The HFEA gets into gear on surrogacy’ which you can read online here.

What does the Bill do?

If passed, the Bill will finally give same sex partners in England and Wales the right to marry. It is currently unlawful in the UK for gay and lesbian couples to legally marry although since 2005 same sex couples have been able to enter into a civil partnership, which gives equivalent legal rights without the badge of ‘marriage’. The new legislation will not only enable same sex couples to marry but also, if they choose, to convert their existing civil partnership into a marriage.

At NGA we have long campaigned for equal rights for same sex couples and we welcome the upcoming changes. Whilst the introduction of the Civil Partnership Act in 2004 was hugely significant, it is not right to draw a distinction between marriage for straight couples and civil partnership for same sex couples. ’Separate but equal’ is a discriminatory approach in principle, in just the same way US racial segregation was in the 1950s.

Civil partners vs spouses: will it make a difference?

We help alternative families in a number of ways at NGA and are interested to see how the upcoming changes may affect same sex couples, in particular couples involved in a relationship breakdown.

Following the introduction of the Civil Partnership Act 2004 couples have been able to bring their civil partnership to an end by petitioning to the court for a Civil Partnership dissolution. If the Bill is passed, same sex couples who have married or converted their civil partnership into a marriage will be able to get divorced, like married heterosexual couples. In practical terms this may make little difference as the way the court deals with untangling things is likely to be broadly the same. One quirk of the rules (which will continue) is that is the petitioning party (the partner bringing the divorce proceedings) will not be able to allege adultery unless his or her partner had committed adultery with a member of the opposite sex. However, the other grounds for heterosexual divorce – unreasonable behaviour, 2 years separation (with consent), 5 years separation and desertion – will also be available.

In respect of resolving the financial matters which arise out of relationship breakdown, it is not known yet what, if any, impact the change in the law will have. There is already little difference as currently the factors the court uses to determine financial matters under the Civil Partnership Act are identical to those used for married couples. This approach was tested and confirmed by the Court of Appeal last year in the case Lawrence v Gallagher (2012). The case involved a same sex couple who were asking the court to determine their financial situation. As this one was one of the first reported cases testing the Civil Partnership Act 2004 the court considered whether the approach should be different from that for divorce. The court confirmed the approach of the court would be the same due to the similarities in the wording in the two Acts, although recognised that every case would be fact-specific. It is highly likely therefore that the law will remain the same in this regard for same sex marriages when dealing with financial disputes.

However, even if the law is the same, same sex relationships less frequently involve the traditional constructs of straight marriages and this can have a big impact on how the finances are divided in practice. If there are children involved, there may also be challenging sensitivities as to unequal biological or legal parentage. Even if the ground-rules of the law seem the same, this means that getting advice from specialists can make an enormous difference. For more information on Civil Partnership breakdown, divorce and children matters you can find more here. At NGA we specialise in family disputes and are recognised as leading specialists in family law for same sex couples. For those who want more information about entering into a civil partnership or marriage we can assist with pre and post nuptial agreements.

It remains to be seen what affect the Bill will have from a legal perspective and we will be monitoring it closely but for now we are pleased to see the progress that has been made. It’s a big step in the right direction.

First, a big welcome to Richard Perrins, a solicitor who has joined our team this month as an experienced family lawyer. He will be supporting all aspects of our work, but with particular responsibility for our disputed cases, including relationship breakdown, finances and children disputes – a growing area of our work. Richard is a member of Resolution and specialises in private family law, including divorce, civil partnership dissolution, financial matters and disputes relating to children.

Massive congratulations also go to Nicola Scott, who has completed her professional training with us to qualify as a solicitor this month. We are always pleased to break new ground, and Nicola is the first solicitor in the UK to qualify into fertility law having trained in this specialist field. She has been an integral member of the team since 2009 and so already has significant experience in surrogacy, assisted reproduction and family law, and we are very proud that she is now a qualified member of the legal team.

If Richard or Nicola (or any of us) can be of any help, please do not hesitate to contact us.

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.

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.

The ruling received a lot of press attention yesterday (including on the front page of the Daily Mail, and in the Guardian, Telegraph, Independent and BBC). Natalie spoke to the Human Fertilisation and Embryology Authority, the British Fertility Society, the National Gamete Donation Trust and the Donor Conception Network – all seeking further information about what to say to patients, donors and donor conceived families who were contacting them.

The HFEA and the BFS have issued press statements in response to the ruling.

We thought it would be helpful to provide a clear summary of what the ruling means for these organisations and others concerned about this:

* The ruling only gave the two donors the right to argue their case in court. It is not yet know whether they will be given any rights of contact with the children.

* The reason for the decision was very fact specific, a result of the fact that the donors were known to the lesbian mothers and had contact with the children in their early months before relationships broke down. The court was satisfied, on the facts, that the donors had sufficient connection with the children to at least justify their cases being heard in court.

* The ruling is therefore exceptionally unlikely to apply to donors who have had no contact with the child – for example unknown donors through licensed clinics.

* However, the ruling could apply to other types of known donors, including known sperm or egg donors who have donated through a licensed clinic, if they can demonstrate sufficient connection with the child in practice. Although in this case conception took place outside a licensed clinic, the law which provided that these men were ‘not to be treated as the father for any purpose’ is the same law which excludes the status of other types of egg and sperm donors.

* The ruling does not in any way affect donors’ responsibilities – it does not make it possible to hold a donor legally or financially responsible for a child they help conceive.

For further information on the case (including the judgment) see our blog. You can also follow us on Twitter for updates.

The ruling has significant implications for same sex parents and families created through donor conception. It is the first case to test rights for same sex parents introduced by Parliament in 2008, which give lesbian mothers the same legal protection following sperm donation as opposite sex parents. Under the Human Fertilisation and Embryology Act 2008, the mothers in this case, as civil partners, are the legal parents of their children. The biological fathers, like sperm donors through clinics, are expressly excluded from being treated as the legal fathers ‘for any purpose’. Relationships broke down after the men each sought more involvement than the mothers agreed. They applied to court, and the court has now ruled that they can have their cases heard.

The court’s decision opens the door to legal claims from sperm donors who want involvement but have no legal parental status. But the judgment also makes it clear that every case will be considered carefully. Donors will not simply be treated as other fathers are, and protecting the primary family is also a material consideration.

Donors will only be able to seek redress on the basis of the the particular facts, where this is justified. In Re G and Re Z, the fact that the donors had had early contact with the children was what persuaded the court that they should at least be allowed to have their cases heard. However, although the court has given the donors ‘leave’ to apply, it does not necessarily follow that they will actually be given any rights of contact, and the court has warned that the underlying legal framework will be a significant consideration, and that the level of contact originally being sought may be considered ‘wholly unrealistic’.

Mr Justice Baker suggested that there was no principle being created of automatic rights for donors to lesbian couples: “I endorse the submissions that the policy underpinning these reforms is an acknowledgement that alternative family forms without fathers are sufficient to meet a child’s need… Thousands of children in this country are being brought up happily and successfully by same-sex couples.”

Going forward, there are some significant lessons for same sex parents (and anyone conceiving through known donation):

Lesbian mothers need to understand that being named on the birth certificate does not give absolute protection. Conceiving with a known donor will always carry some level of risk if things don’t work out as intended, so mothers should be very careful about giving any level of contact unless they are absolutely sure.

Gay fathers who act as known donors need to understand that their legal position may be more fragile and uncertain than they think. Men who want to be fully involved fathers will not have any automatic rights if there is a dispute.

Everyone going into known donation or co-parenting arrangements should be crystal clear about their expectations from the outset. Setting the strongest possible foundations at the start is the best way of avoiding later problems. One way to do that is to put an agreement in place, but the real key is good communication – an agreement is a means to that rather than an end in itself. There is more from our blog on How to Avoid a Known Donor Dispute.

You can read the judgment in full to Re G (a minor) and Re Z (a minor) [2013] EWHC 143 (Fam).

At NGA, we provide leading specialist advice to parents conceiving through known donation, including same sex parents, both male and female, and leading representation to those in disputes. We have worked at the cutting edge of the law, pushing boundaries, for many years, and were instrumental in helping create the rights for same sex parents in the HFE Act 2008. There is more information on our website about known donor disputes and about planning known donation for mothers and for fathers. You can also follow us on Twitter for the latest updates on our work and campaigns.

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.

Natalie talks about our experience on the ground of working with non traditional families and says:

“I’m constantly surprised by how many variations there are on having a child, the technologies available and the situations people get themselves into… Gay families are obviously different, so they are inevitably having those conversations with children and developing the language. I think it’s helping heterosexual couples deal with some of those issues, because they can see same-sex couples dealing with it in such a positive way. We have experienced a real cultural shift, particularly with donor conception – 20 or 30 years ago, heterosexual couples were told it was best never to tell the child. Now everyone is encouraged to be open and treat it as a positive thing. It’s a complete revolution in thinking. “

The article has a positive message, with stories including that of Fiona O’Driscoll of Surrogacy UK whose surrogate is now ‘Auntie Kate’ to her kids, and research from Stonewall which shows that children with same sex parents are just as likely to be happy as any others. It explores how gay parents are helping to push some positive trends, and how language is evolving fast to keep up.

It’s great to see such a positive piece, which really does reflect what we see on the ground every day. As Kate Bussmann says so eloquently: “And of all the parents I spoke to, gay or straight, with donors or surrogacy, the stories were almost entirely positive. They’re proud of forging their own version of ‘normal’ and more than one of them described the ‘richness’ that comes with having all those extra people in their lives.”

Amen to that.

You can read the Red feature in full here, or find out more about surrogacy, donor conception and our campaigning work from our website.