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
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
The Hague Conference on Private International Law announced last year that it was looking at regulating international surrogacy arrangements. Although the process is at an early stage, any international treaty on surrogacy could have a significant impact on the growing numbers of parents crossing borders to find surrogate mothers.
Kellen and Patricia, lesbian mums from New York who have a daughter and are now expecting twins, following egg swapping IVF – Patricia is the birth mother but she carried embryos created with Kellen’s eggs.
There is, in all this, one glaringly unsubtle problem, and that is surrogacy, which as a percentage affects gay men more than any other group. Commercial surrogacy is illegal in the UK, forcing many childless couples to seek help abroad. When they return, the British government is reluctant to endorse an arrangement that undermines public policy. “English law applies its own rules as to who the parents are, irrespective of what happens abroad,” says Natalie Gamble, the country’s leading fertility lawyer. “So even if you’re named as the parent on a US birth certificate, English law will say that the surrogate is the mother and if she’s married, her husband is the father.”
We have long campaigned for alternative families, both individually in court, and by arguing hard for changes to the law (including supporting the UK’s legal changes allowing gay dads and lesbian mums to be named on birth certificates together). Why do we do this? Because we believe that parents who love and cherish their children raise wonderful families, no matter what the structure.
