Gamble & Ghevaert

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

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