Posts Tagged ‘fertility lawyer’
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.
Tags: commercial surrogacy, domicile, fertility law, fertility lawyer, gay men conception, gay parenting, gay surrogacy law, Human Fertilisation and Embryology Act, Indian surrogacy, international surrogacy, international surrogacy law, law, Mrs Justice Theis, Natalie Gamble Associates, Re A and B (parental order domicile), same sex parenting law, surrogacy agreements, surrogacy law, surrogacy lawyer, surrogacy solicitor
Posted in fertility law, gay men surrogacy, international surrogacy, Natalie Gamble Associates news, same sex parenting | Comments Off
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.
Tags: fertility law, fertility lawyer, gay men conception, gay parenting, gay surrogacy law, international surrogacy law, law, maternity, maternity leave, Natalie Gamble, Natalie Gamble Associates, surrogacy campaigning, surrogacy law, surrogacy lawyer, surrogacy solicitor, UK surrogacy
Posted in fertility law, gay men surrogacy, international surrogacy, Natalie Gamble Associates news, same sex parenting, UK surrogacy, Uncategorized | Comments Off
Tuesday, August 7th, 2012
Sarah Wood-Heath has written an article for lesbian magazine G3 about known donor disputes, and the recent Court of Appeal decision to award contact to a biological father who donated his sperm to a lesbian couple.
Although every case in the family court is fact specific (and the court made it clear that the only binding principle it was setting was that the child’s welfare should be paramount), it is a decision which has changed the trend of previous case law, which has always been to protect the integrity of the lesbian family unit against any claims from the donor. We have yet to see how significant it may be in future known donation disputes.
You can read Sarah’s G3 article in full or find out more and known donor disputes from our website.
Tags: Court of Appeal, donor agreement, donor conception, donor conception law, donor insemination, fertility law, fertility lawyer, G3 magazine, gay parenting, known donor dispute, known sperm donor, law, lesbian, lesbian parenting, preconception agreement, same sex parenting law, Sarah Wood-Heath, sperm donation law, sperm donor law
Posted in Co-parenting, donor conception, fertility law, lesbian parenting, same sex parenting | Comments Off
Thursday, July 19th, 2012
The Telegraph and Daily Mail have reported that womb transplants may soon become a reality for women unable to carry a baby - groundbreaking science creating a ‘more ethical solution than surrogacy’.
Yet again, surrogacy is getting a bad press. It is either portrayed as a murky underworld fraught with legal and ethical problems, or as the exclusive domain of the super-rich and famous. As people who deal with real life surrogacy on a daily basis, we know that it is rarely either of these things. Surrogacy is an option for ordinary parents in the UK who have suffered miscarriages, stillbirths, cancer and medical problems they have lived with since birth. It gives hope to women failed by modern medicine, and it is a human solution at the end of a scientific road, a choice by women to help other women.
Why is this collaborative enterprise so unethical? As long as there is free informed choice, isn’t it more ethical to have a child born through an easy natural pregnancy than to put a woman who has already survived cancer through major surgery and anti-rejection drugs, at goodness knows what risk to her and her child?
If you want to talk ethics, let’s talk about the way surrogacy is regulated in the UK. With advertising banned and professional services restricted, parents and surrogates are left without adequate support. Our laws are outdated, recognising only the surrogate and her husband as having any parental status when a child is born. And parents are in droves going abroad to jurisdictions where finding a surrogate mother is easier than it is in the UK, to places where there is often even less protection than in the UK and even less guarantee of free choice.
So let’s stop slating surrogacy in the UK, and have the courage to embrace and celebrate it alongside new options like womb transplants. Only then can we start thinking about managing surrogacy properly in the UK to protect everyone involved.
There is more information about surrogacy on our website.
Tags: Californian surrogacy, commercial surrogacy, fertility law, fertility lawyer, gay surrogacy law, international surrogacy, international surrogacy law, surrogacy campaigning, surrogacy law, surrogacy lawyer, UK surrogacy, womb transplant
Posted in gay men surrogacy, international surrogacy, UK surrogacy | Comments Off
Thursday, June 7th, 2012
By Natalie Gamble. This article was first published in Bionews on 6 June 2012 and is reproduced by kind permission of the Progress Educational Trust. PET 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.
Indian surrogacy is a hot media topic, with several stories over the past week about couples being stuck in India waiting for British passports for their biological children. As far as we are concerned, this isn’t really news – it is the shared experience of every British parent who has had a child through surrogacy in India, and something we deal with on a daily basis.
A surrogacy industry has grown rapidly in India over the past few years, attracting Western intended parents with limited surrogacy options at home. Although the Indian parliament is considering introducing Indian surrogacy laws (one feature of the proposed Bill being to restrict surrogacy for foreign parents), there is widespread doubt about when or if these laws will ever be passed. With no law to regulate Indian surrogacy as things stand, a profitable surrogacy market has sprung up. Clinics rely on Indian contract law to draw up binding agreements between surrogates and intended parents, and registrars facilitate naming intended parents on Indian birth certificates. All together, it adds up to an affordable but unregulated way of having a child for infertile and gay couples.
But Indian surrogacy is not as simple as it seems for British intended parents. UK law says that the surrogate is the mother of the child and, if she is married, her husband is the father, and these rules apply no matter where in the world the child is conceived. In practice this means that getting named on an Indian birth certificate is false comfort, since the Indian birth certificate will not be recognised for any UK legal purposes.
Getting home is just the first hurdle. Most children born to British parents through surrogacy in India are born ‘stateless’ – they have no nationality anywhere in the world – because of the mismatched laws on parenthood. British parents have to apply to the Home Office for their child to be registered as a British citizen on a discretionary basis. Since the process takes many months, parents must routinely be prepared for a long stay in a foreign country with their newborn child.
Parents also have to apply to the family court in the UK within six months of the birth for a ‘parental order’ – this makes them their child’s legal parents for UK law purposes, extinguishes the status of the surrogate, and gives them a British birth certificate. Indian surrogacy arrangements inevitably involve a payment to the surrogate of more than her expenses (3-4 years’ normal wages is typical), and this means that the parents have to ask the UK court’s special permission to ‘authorise’ the payments retrospectively. Since this challenges UK policy against payments for surrogacy, every case goes to the High Court to be scrutinised carefully by a senior judge.
This has been a fast evolving area of case law in the High Court over the past few years. In 2008, the High Court for the very first time ratified a foreign commercial surrogacy arrangement in the case of Re X and Y (foreign surrogacy) in 2008. The case involved a Ukrainian surrogacy arrangement in which the British parents of twins born ‘stateless and parentless’ in the Ukraine were awarded a parental order to secure their children’s status because, the court said, the parents had behaved responsibly. The next landmark was in 2010 in the case of Re L (a child) (a case involving a child born to British intended parents through surrogacy in Illinois) in which the High Court established the important principle that the child’s welfare was its ‘paramount consideration’. The court said that, unless a foreign surrogacy case was one of the clearest abuse of public policy, a parental order would always be granted.
What this means in practice is that parents who embark on foreign surrogacy arrangements can now be confident that (unless the circumstances are very unusual) they will ultimately be able to become the legal parents of their child. But the process is rigorous and the High Court continues to examine every application carefully – particularly so in Indian cases. We have dealt with many Indian surrogacy cases, and see in practice the High Court’s meticulous approach to confirming the surrogate’s full consent in the context of language barriers and sometimes illiteracy, and ensuring there has been no exploitation in the absence of law and regulation.
Perhaps one of the most worrying features of the Indian surrogacy phenomenon is the UK parents who do not apply to court. Armed with an Indian birth certificate and a British passport, many avoid the rigours of the High Court, keep their heads down and hope for the best. Dealing with the law can be daunting, but not doing so means that their child remains legally the child of the Indian surrogate mother and her husband, and not theirs. The full fallout of these problems has yet to come, but come it will, since a lack of parentage has all sorts of real implications in practice, from liability for child support on relationship breakdown, to authority for giving medical consent, to inheritance rights, to involvement of social services. The worst thing is that UK law only gives a six month window of opportunity within which parents can apply for a parental order – if parents do not apply before their child is six months old, they lose the chance forever.
What is the answer to all these problems? In a modern globalised world, we need to be realistic. It is thanks to our family court judges that our surrogacy laws have adapted to be as child-focused as they are, but we need to do more. Yes, we should do all we can to encourage responsible surrogacy practice (of which altruistic surrogacy may be the gold standard), but not at the expense of prioritising the welfare of real children being born through surrogacy under other legal frameworks. We need to make parents legally responsible for the children they bring into the world, give them proper maternity leave rights to care for their children, and ensure that children are not stranded abroad and left vulnerable for any longer than absolutely necessary.
If we are concerned about the perils and ethics of cross border surrogacy, the answer is for us to look again at how surrogacy works in the UK, because – let’s be clear about this – our current laws are responsible for driving UK demand for Indian surrogacy. UK law makes it deliberately hard for parents to find a surrogate in the UK, and creates a regulatory vacuum in which intended parents have to fend for themselves with no guidance on which surrogacy services being offered in the UK and abroad are safe and reputable. In the 1980s it was hoped that these restrictive surrogacy laws would make surrogacy ‘wither on the vine’, but given today’s global surrogacy market that no longer seems a realistic objective. The truth is that all our surrogacy laws achieve today is forcing parents to look abroad, and that few parents would choose to spend six months waiting for a passport in India if there were a good safe alternative at home. It’s time we had proper regulation of surrogacy in the UK and laws which really do protect the welfare of children born through surrogacy, both in the UK and in India.
There is more information on our website about international surrogacy law and our surrogacy law services.
Tags: Bionews, commercial surrogacy, fertility law, fertility lawyer, fertility treatment, gay surrogacy law, Indian surrogacy, international surrogacy, international surrogacy law, law, Natalie Gamble, surrogacy agreements, surrogacy campaigning, surrogacy law, surrogacy lawyer, UK surrogacy
Posted in fertility law, gay men surrogacy, international surrogacy, Natalie Gamble, Natalie Gamble Associates news | Comments Off
Tuesday, May 29th, 2012
Following prominent Indian surrogacy stories in the Telegraph and Evening Standard, Natalie was interviewed on BBC Radio this afternoon to explain the law.
In the absence of regulation, a commercial surrogacy industry in India has boomed over the last few years, with many Indian fertility clinics now offering surrogacy packages to foreign intended parents at a cost of around £20,000. Indian law allows intended parents to enter into a binding contract with a surrogate mother, and Indian officials register the intended parents on the Indian birth certificate.
But the law is not as simple as it seems if you are a British parent. For UK legal purposes, the parents of a child born through surrogacy are the surrogate mother and, if she is married, her husband. Regardless of what the Indian birth certificate says, you will not be recognised as parents and this means that your child may well be born ’stateless’ without any right to a passport anywhere in the world. You will also have no status as the parents of your child when you come back to the UK.
There are solutions – a discretionary application to the British High Commission to give a British passport, and an application to the family court for a parental order which ultimately gives a British birth certificate. However, it is important to be well prepared, and to be very careful about the ethics and safety of what you are doing, given the lack of regulation in India.
Despite the sudden media coverage, none of these issues are new. In a landmark case Re X and Y in 2008, the High Court warned of the dangers of international surrogacy after twins born through a Ukrainian surrogacy arrangement were born ‘marooned stateless and parentless’ by the conflict between UK and Ukrainian law. This was the very first UK case to ratify a foreign surrogacy arrangement, and it has been followed by many others over the past four years. Exactly the same issues apply in Indian surrogacy cases, of which we have dealt with many. No parental orders have yet been refused, although the court does look at every situation carefully to ensure there is no exploitation and to protect the welfare of the child.
You can find out more from our website about international surrogacy law.
Tags: BBC Radio London, commercial surrogacy, Dr Goopta, Drivetime, Evening Standard, fertility law, fertility lawyer, gay men conception, Indian surrogacy, international surrogacy, international surrogacy law, Jonathan Busher, Natalie Gamble, Stephen Hill, surrogacy agreements, Surrogacy Centre India, surrogacy law, surrogacy lawyer, Telegraph
Posted in fertility law, gay men surrogacy, international surrogacy, Natalie Gamble, Natalie Gamble Associates news | Comments Off
Monday, May 28th, 2012
Sarah Wood-Heath was interviewed on Gaydar Radio on Saturday morning about same sex parenting and the options and pitfalls for gay and lesbian parents starting a family.
Talking to Neil and Debbie on the Saturday morning breakfast show (as Britain’s answer to Ally McBeal!), Sarah explained how surrogacy works for gay fathers, and the differences between a surrogacy arrangement in the UK or abroad. Careful planning is the best way of avoiding legal problems, especially for gay dads planning international surrogacy, given the immigration issues and the fact that UK law won’t recognise a foreign birth certificate naming you both as the parents. Sarah was also asked about the options for lesbian couples, discussing the pros and cons of using a known or unknown sperm donor, and the need to set things up in the right way.
Although the law has become much more gay-friendly in the last few years, so much is still so untested, including what happens where relationships break down and who has rights and parental status when gay or lesbian parents break up or get divorced.
The good news is that there are so many options available now for same sex couples and single gay and lesbian parents – adoption and co-parenting are also on the list. While the law still has a little way to go, it is evolving to try and keep up and it is now much easier for same sex couples or singles to find a way to start a family. It’s just a question of knowing your options and making an informed decision so you make the right choice for you. With good advice it needn’t be complicated.
There is more information on our website for gay and lesbian parents at www.nataliegambleassociates.com. You can also check out the Gaydar Radio website at www.gaydarradio.com.
Tags: 26 May 2012, Ally McBeal, Co-parenting, commercial surrogacy, donor agreement, donor conception, donor conception law, donor insemination, fertility law, fertility lawyer, fertility treatment, gay men conception, gay parenting, gay surrogacy law, Gaydar Radio, international surrogacy, international surrogacy law, law, lesbian parenting, lesbian relationship breakdown, Neil and Debbie, same sex parenting law, Sarah Wood-Heath, sperm donation law, sperm donor law, surrogacy agreements, surrogacy law, surrogacy lawyer, UK surrogacy
Posted in adoption, Co-parenting, donor conception, family building, fertility law, gay men surrogacy, international surrogacy, lesbian parenting, Natalie Gamble Associates news, same sex parenting, UK surrogacy | Comments Off
Tuesday, May 15th, 2012
For single prospective dads, the decision between surrogacy, adoption and co-parenting is a tough one, with each option having its own benefits and pitfalls. First, ask yourself the question – what role do I want to have in my child’s life? To go it on your own or share the journey? If you want to go it on your own, surrogacy or adoption are undoubtedly the best choices. If you want a shared role, co-parenting could be ideal.
UK law is not geared up to cater for all single would-be parents. For men, building your own biological family through surrogacy is difficult, given the need to find a woman to carry your child and the fact that the law may not operate in your favour. The law is more supportive on adoption, but forming a non-biological family requires patience and determination.
Surrogacy – establishing a surrogacy arrangement as a single parent is difficult. As intended (biological) parents are not treated as their child’s legal parents automatically, parents through surrogacy need to go through a specific legal process to achieve this status. This particular process, though, is only available to couples, effectively denying single parents the legal solution available to everyone else. Our previous government’s rationale for this (despite our attempts to persuade them otherwise) was that surrogacy is such a serious undertaking, only couples should be eligible.
This has the knock-on effect of making it almost impossible to join one of the UK’s surrogacy organisations as a single dad, since their first question to applicant members is whether they can resolve their status after birth. This essentially ousts all single parents.
So, finding a surrogate is challenging. Some single dads find a willing volunteer among their friends and family. Others go abroad, where the same restrictions don’t apply locally. This undoubtedly overcomes the initial hurdle of getting things off the ground, but it only gets you half way there. The anomaly in the law on surrogacy means that once your baby is born, the surrogate will automatically be treated as the legal mother. You will only be treated as the legal father if the surrogate is unmarried and even then, you are unlikely to have full parental status in the UK. If born abroad, your child may not be British.
There are various options for fully securing your legal status, and/or extinguishing that of your surrogate, but the law is complex and remains largely untested.
Co-parenting can be an effective way for single dads to have a family and share the load. But, it is naturally complicated, not in the set-up, but by virtue of the distinct influences each co-parent will have on your child.
The best arrangements are built on a strong foundation of openness and matched expectations – the primary cause of co-parenting turning sour is a lack of communication at the outset. The logistics of pregnancy, childbirth and breast feeding will, in the majority of arrangements, mean that your baby will live primarily with the birth mum (and her partner). It is important that this doesn’t lead to resentment.
The courts are beginning to show an appetite for recognising co-parent fathers in situations where things have gone wrong. The law remains muddled though and there are still improvements to be made.
Your legal status (and security) will depend on the circumstances of the birth mum, and whether she is in a relationship. Co-parenting arrangements often involve more than two parents but the law only recognises a child as having a maximum of two parents. This means that the law can override your status as a legal father, instead giving the status as ‘second parent’ to the birth mum’s partner
Adoption is another way of creating a family, with children much in need of a loving parent. This is a different experience to conceiving a family, with the inherent need to engage with the authorities before you can be matched with your child, the non-biological relationship you will have and the fact that your child may have particular needs and be older.
The law is much more up to date with respect to single parents hoping to adopt. Like everyone else, you will need to go through a rigorous assessment process and additionally be able to show that you are the whole package in one, in terms of meeting the needs of a child.
Adoption is possible for you within the UK and abroad, although you will need to ensure that the laws in your destination country are compatible. In advance of your match you will need to be approved as a prospective adopter. The process usually takes 6-8 months and involves attending preparation groups and working with a social worker who will perform background checks, seek references and do home visits before preparing a detailed prospective adopter’s report which will be presented to an adoption panel for their consideration. If successful, you will then begin the matching process either within the UK or abroad.
So there are now more choices than ever for single dads to build their own families with or without sharing the responsibilities. It may not be straightforward but it is by no means impossible.
There is more information on our website about surrogacy for single dads, co-parenting as a father and adoption, or you can contact us for help or advice.
Tags: adoption, Co-parenting, conceiving, family building options, fertility law, fertility lawyer, gay men, gay men conception, gay surrogacy law, international surrogacy, international surrogacy law, single dad, single men, solo dad, surrogacy law, surrogacy lawyer, UK surrogacy
Posted in adoption, Co-parenting, family building, fertility law, gay men surrogacy, international surrogacy | Comments Off
Tuesday, May 8th, 2012
By Sarah Wood-Heath. This article was first published in Bionews on 8 May 2012 and is reproduced by kind permission of the Progress Educational Trust. PET 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.
Sarah Wood-Heath, solicitor at Natalie Gamble Associates
There have been a number of high profile cases of late involving disputes within alternative family structures. Primarily these concern fathers or known donors seeking more of a relationship with their child than they originally wished for. However, another interesting and sadly increasing area we are witnessing is the breakdown of relationships in two-mother lesbian parent families.
As with any relationship breakdown, issues to be dealt with include division of the finances, any civil partnership dissolution and with whom any children will live (as well as contact with the non-resident parent). But these types of divorce cases have a more complex dynamic, with difficult legal and social questions arising from the mismatched biological (and often legal) status of the two female parents.
To date there has been very little judicial guidance as to how much weight the family court will place on the importance of being a birth mother in divorce proceedings, and whether in such cases the birth history and biological link should be considered more important than the relationship between the non-birth mother and the child.
Of course every case is unique, but the two main cases so far where the court has considered and explored these issues in principle make for very interesting reading.
The first case was that of Re G [2006] UKHL 43 which involved a difficult dispute about where the children conceived by a lesbian couple through artificial insemination should live following their separation. The High Court and Court of Appeal ruled that the non-birth mother should have primary care of the two children (mainly because the birth mother had behaved badly and removed the children to Cornwall deliberately to obstruct her former partner’s relationship with the children). However, in a landmark judgment the House of Lords ruled that the lower courts had not given sufficient weight to the fact that the birth mother was the biological mother of the children and ordered that the children should continue to live with her. The House of Lords expressly stated that the lower courts had placed too much weight on the behaviour of the birth mother and not enough on the biological basis of her relationship. This was a ‘significant consideration which was of importance’. Being the birth mother is, it seems, significant.
The more recent case of T v B [2010] EWHC 1444 (Fam) involved a lesbian couple who were not civil partners but had lived together for many years and had undergone fertility treatment to conceive a child together. Once the child was born they both undertook the role of parents. Although the law at the time did not recognise the non-birth mother as a legal parent, she sought – and was given by the court – parental responsibility, which meant she had full legal authority to take decisions as a parent and to be involved in her child’s care. Following separation the birth mother applied to the courts for financial provision from the non-birth mother. The court ruled that as the non-birth mother was not a legal parent she had no financial obligation despite the fact that she had to all intents and purposes been a ‘parent’ to them from the very start. The court was somewhat constrained by the wording of the law (and its frustration was evident) but it was clear in this case that whether you were a birth mother or not was deeply significant.
When the court are considering cases involving disputes about care arrangements for children, the court has a range of factors it has to take into consideration. These include: the child’s age, sex and background; their physical, emotional, educational needs; the effect of any change in circumstances; their ascertainable wishes and feelings; any harm the child has suffered or is at risk of suffering and how capable each parent is in meeting the child’s needs. The welfare of the child will be the court’s paramount consideration and any decision made by the court will be based on what the court considers to be in the child’s best interests. In practice this gives a lot of flexibility, although it is clear that the court is inclined to place weight on the importance of the biological link with the birth mother. In relation to child maintenance questions, this bias is more institutional, with clear legal rules which make only legal parents (and their spouses) financially responsible.
On 6 April 2009 the law in the UK changed to allow two mothers to be named on the birth certificate, recognising them both as the legal parents and giving them both financial responsibility for their children. It is notable that both of the birth mother vs non-birth mother cases have involved children born before this legal change. Whether or not the new law will give greater weight to the non-birth mother’s position waits to be seen (although this will certainly be the case in relation to financial questions). Things are likely to be muddied further by the increasing blurring of the lines between birth and biological parenthood for lesbian couples. We are certainly seeing more egg swapping cases, where an egg has been taken from the non birth mother, fertilised and then transferred to the birth mother. Where parents in these situations separate, will the birth mother or the biological mother be the one with the upper hand?
Same-sex divorces are undoubtedly legally complex where children are involved. In a dispute over a child within an alternative family structure, an argument often run is the importance of the biological link, and the genetic identity of the child. With changes to the law and even more complex family structures emerging, it will be interesting to see how the court responds.
Tags: arrangements for children, child access, child contact, child custody, child maintenance, child residence, child support, donor conception law, donor insemination, fertility law, fertility lawyer, gay divorce, gay parenting, gay parenting law, gay relationship breakdown, gay separation, lesbian birth mother, lesbian child maintenance, lesbian divorce, lesbian non birth mother, lesbian parenting, lesbian relationship breakdown, lesbian separation, Natalie Gamble Associates, same sex parenting law, Sarah Wood-Heath, sperm donation law
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Monday, April 23rd, 2012
Emma Brockes has written a fabulous major feature for this weekend’s Guardian Weekend magazine on same sex parenting, in which we are proud to be quoted. The piece tells the story of three modern same sex parent families:
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.
Will Halm and Marcellin Simard, gay dads to three children age 15, 13 and 10, who pioneered surrogacy as gay dads in California, where they were the first same sex parents to be named on a birth certificate together, and where Will now represents others as a fertility lawyer.
Andrew Solomon and John Habich, gay dads to a truly alternative family structure – a son through surrogacy who they are raising together, and three more children co-parented with two different mothers.
It is a wonderful picture of the realities of modern same sex parenting, with scenarios we are increasingly dealing with for families in the UK too. All the parents involved talk vividly about the challenges and problems they have faced as gay parents – not the playground prejudice and emotional problems many might expect, but losing legal rights when crossing borders, and grappling with obstructive passport authorities. But the biggest problem of all for alternative families remains surrogacy. As Emma says in her article:
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.”
This can lead to some bizarre situations. In 2008, Gamble’s firm acted for a British couple who had used a surrogacy service in Ukraine. “In Ukraine, the law said they were the parents. But under English law, the Ukrainian surrogate and her husband were the parents. The systems were in direct conflict. The result was that the children had no parents and no nationality. They had no right to stay in Ukraine, and they had no passport to cross any borders. That’s the worst nightmare of international surrogacy.” Gamble persuaded the Home Office to issue the children with discretionary entry clearance, then applied to the high court for a parental order, naming the British couple as legal parents.
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.
With that in mind we want to salute, above all, what Will Halm says about his teenage daughter: “That a test tube baby, from two gay men, is a well-adjusted, smart, polished girl at 15, who is comfortable talking about her family – she is what I would like the world to see. Not the parents who are creating the child, but the children themselves.”
You can read the article in full at http://www.guardian.co.uk/lifeandstyle/2012/apr/20/gay-parenting-emma-brockes
Tags: Andrew Solomon, Californian surrogacy, Co-parenting, commercial surrogacy, donor agreement, donor conception, donor conception law, donor insemination, Emma Brockes, fertility law, fertility lawyer, gay men conception, gay parenting, gay surrogacy law, Guardian, international surrogacy, international surrogacy law, Kelen Mori, law, lesbian, lesbian parenting, Natalie Gamble, Patricia Moreno, same sex parenting law, surrogacy agreements, surrogacy lawyer, The Guardian, Will Halm
Posted in Co-parenting, donor conception, family building, fertility law, gay men surrogacy, international surrogacy, lesbian parenting, Natalie Gamble, Natalie Gamble Associates news, same sex parenting | Comments Off
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. 
