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Posts Tagged ‘Human Fertilisation and Embryology Act’

International surrogacy – UK High Court judge awards parenthood to non-British gay dads

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.

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Posted in fertility law, gay men surrogacy, international surrogacy, Natalie Gamble Associates news, same sex parenting | Comments Off

NGA part of HFEA National Donation Strategy Group

Friday, September 7th, 2012

The UK’s regulator of fertility treatment, the HFEA, undertook a wide ranging public consultation last year, which looked at the barriers and motivations to egg and sperm donation in the UK. The review uncovered numerous barriers to donation, some which could be removed through regulation and others which could not be as easily tackled. It is these issues which sit outside of traditional regulation that have led the Authority to set up a national strategy group to find new ways of tackling obstacles to sperm and egg donation.

The HFEA aims were to use their unique position as the national regulator to bring together a wide range of experts to come up with new approaches to raising awareness of donation and improving the care of donors in the UK.

Helen is really pleased to have achieved a place on this valuable group that will make a real difference to the future of sperm and egg donation and the effects upon donors, future parents and ultimately the donor conceived children.

The three core objectives of the group will be to:
1. increase awareness of donation and the information that donors receive
2. improve the ‘customer service’ that donors receive when they contact clinics
3. help donors provide better information about themselves for future families

The HFEA aims to bring together a group of people with diverse experiences, including non-licensed donation services, people with experience of blood, organ or tissue donation, as well as those with experience of sperm and egg donation. This includes people with interest in the welfare of donors, patients and donor-conceived people.

We would love to hear from any donors, future parents or donor conceived to pass on their views to the donation strategy group. Please don’t hesitate to be in touch with us at hello@nataliegambleassociates.com

Click here to read the members of the group

More information can be found on our website at donor conception and co-parenting as well as eggs, sperm and embryos.

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Posted in donor conception, family building, Uncategorized | Comments Off

President of the High Court Family Division endorses international surrogacy

Tuesday, December 13th, 2011

Sir Nicholas Wall, the President of the High Court Family Division, has made public his decision to give parenthood to the British parents of twins born through surrogacy in India.  The President said the issues were of “considerable public importance” and he wished to endorse the previous judgments of Mr Justice Hedley in other similar cases.

The decision, from one of the UK’s most senior family judges, represents a bolstering of the UK court’s position on international surrogacy:  that although commercially organised surrogacy is not yet permitted in the UK, British parents can be awarded parenthood if they go abroad and pay a foreign surrogate mother more than her ‘reasonable expenses’.  Sir Nicholas Wall made clear that the court’s paramount consideration is the child’s welfare, and that a birth certificate will be given as long as there has been no exploitation and the parents are not circumventing child protection laws in the UK.

In this particular case, two Indian surrogate mothers (carrying embryos created with the intended father’s sperm and eggs from the same anonymous donor) gave birth to a boy and a girl within a few days of each other, following a surrogacy arrangement commissioned by a British couple.  A total of some £27,000 was paid to the Indian clinic.  The court was ultimately satisfied that the parents were “entirely genuine and straightforward” and that “it is plainly in the interests of these two children that they should brought up by Mr and Mrs A as their parents”.

The case follows similar decisions by Mr Justice Hedley in the cases of Re X and Y (2008) in which British parents paid £23,000 to a Ukrainian surrogate mother, Re S (2009) involving a Californian surrogacy arrangement, Re L (2010) involving a surrogate mother based in Illinois and Re IJ (2011) involving a Ukrainian surrogacy.

For further information you can read the judgment in full or see our international surrogacy law pages.

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Posted in family building, fertility law, gay men surrogacy, international surrogacy, Natalie Gamble Associates news, same sex parenting, Uncategorized | Comments Off

An interesting perspective on the HFEA’s decision from the USA

Friday, October 21st, 2011

We thought some of you may be interested in this response to the HFEA’s decision from Julie Shapiro in the USA, who writes an excellent blog on assisted reproduction law at http://julieshapiro.wordpress.com/

And The Right Price Is……..$1200

My last post was triggered in part by the then-impending announcement by the HFEA of adjustments to the monies provided to those who provide gametes in the UK.   Yesterday’s Guardian reports the result of the HFEA’s deliberations:  Egg donors will now receive compensation in the amount of 750 pounds (which is about $1200.)

It’s interesting to think about what the HFEA was trying to do here and it seems to me that the way it’s talked about is fundamentally different from how I’ve been thinking about it.   I’ve been talking about simple economics–if you offer more money, you get more sellers.   Here the government is fixing a price and trying to strike the right price to increase supply adequately.   The alternative–which exists in the US–is largely unregulated market where the ordinary laws of supply and demand set prices.

But the HFEA (and others quoted in the argument) see this quite differently.  They talk about trying to balance between altruism (which is the right reason to provide gametes) and more base motives–like financial greed or need.   From this perspective, you don’t want to offer too much money or you’ll get people acting for the wrong reason.  But you don’t want to deter the altruistic, since there are real hardships to providing gametes.   Consider this quote:

Professor Lisa Jardine, the HFEA’s chairman, denied that the £750 payment would induce people to donate eggs purely for money. “I find it very hard to see the £750 as an inducement,” she said. “I think it is a fair reflection of the effort and the time and the discomfort and the pain of some of it. I can’t see any room there for inducement.”

The concern about motives morphs into something slightly different later in the article:

Clare Lewis-Jones, chief executive of Infertility Network UK, said: “We hope that today’s announcement to increase the payment to donors will help encourage more people to become donors. The balance between coercing people to donate by offering large sums of money, and paying enough to ensure donors are compensated for their expenses and the wonderful gift they are giving is a fine one.”

The concern raised here–coercion–is one that resurfaces in other quotes.

Laura Witjens, chair of the National Gamete Donation Trust (NGDT), said: “No amount of money will ever repay what an egg donor does to help childless couples. This priceless gift changes lives and donors truly do it to help others. The NGDT believes that altruistic motives should remain at the core of donation and that payment, although intended as an expression of gratitude, should never facilitate coercion.

Now it seems to me that everyone agrees that altruism is good and is what they want to encourage.   But the countervailing concern seems to shift from bad motives (doing it for the money) to coercion and ”coercion” seems an odd concept here.  Frankly, offering a lot of money for something doesn’t fit my general idea of coercion.   But I suppose the connection is that if you offer a lot of money and if women need money, then women will be compelled to take the offered money.     Thus, economic need is the instrument by which coercion becomes effective.  I think this rather strains the meaning of the language.

Apart from this, there’s a problem with the HFEA thinking.   Most of what I’ve read suggests that most women who become gamete donors–like most women who become surrogates–do so for mixed motives.   It’s pretty rare to see the wealthy in either group–which suggests that people who do not need money choose not to do these things.  But the women who provide eggs or become surrogates do seem (generally speaking) to be motivated in part by altruism as well as by an interest in the compensation.

This suggests to me that the HFEA’s careful balancing is based on a false assumption–that one acts for altruism or one acts for money but not for both.  If most women have mixed motivations then what becomes of the balancing?  When motivations are mixed no line can be drawn between altruism and financial need/desire.   And there’s no way of measuring whether you’ve done it right.  In time we will be able to tell how much the increased compensation affects the supply of eggs, but I’m not sure we’ll ever be able to tell

http://julieshapiro.wordpress.com/

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UK Donor Link threatened with closure

Tuesday, August 23rd, 2011

We are dismayed and alarmed by news that funding may be withdrawn from UK Donor Link, an organisation which provides vital support to donor conceived people conceived in the UK before 1991.  Natalie Gamble has written to the Minister of Health Anne Milton to urge her to reconsider the decision, and Natalie’s letter is reproduced below:

Dear Minister

I am writing as a specialist fertility lawyer, responsible for representing many families created through donor conception.  I understand that the public funding provided to UK Donor Link since 2003 may be withdrawn from October, and that as a result UK Donor Link has already had to close its doors to new registrants and is threatened with closure from October.

I urge you to ensure that funding for UK Donor Link continues.  UK Donor Link provides a critical role in the provision of information to donor conceived people, and is the only organisation to offer support to adults conceived with donated eggs or sperm before the Human Fertilisation and Embryology Authority’s Register of Information was established in August 1991. 

Ensuring that donor conceived people have access to information about their genetic heritage  has been a clear foundation of government policy in relation to donor conception consistently over the past decade.  The policy reflects the growing and universally accepted understanding of the importance of openness and availability of information to donor conceived people, and followed a decision of the High Court as to UK law’s compliance with human rights legislation.

In 2002, the English High Court heard a landmark case (R. (on the application of Rose) v Secretary of State for Health) which established that if donor conceived people were denied rights to access information about their genetic heritage this engaged their human rights under article 8.  Mr Justice Scott Baker held that: 

“Article 8 is engaged both with regard to identifying and non-identifying information, albeit in this case the identity of the donors is not directly sought. What is wanted is non-identifying information and a voluntary contact register. I do emphasise, lest there be any doubt about it, that the fact that Article 8 is engaged is far from saying that there is a breach of it. That question, which may fall to be decided on a further occasion, involves consideration of other matters and may depend on any future action taken by the Secretary of State.”

In response to this case, two things happened: 

1. Parliament changed the law in respect of information about donor conception for people conceived in the UK since 1991 whose information was kept on the HFEA’s Register of Information.  Under the Human Fertilisation and Embryology Authority (Disclosure of Donor Information) Regulations 2004/1511 (which came into force on 1 April 2005) newly registered egg and sperm donors had to agree to being identifiable to their offspring once they reached the age of 18; and donors who were already registered (who, other than in limited circumstances, could not continue to donate on an anonymous basis) were given the opportunity to re-register as identifiable.

 2. UK Donor Link was established in 2003, with the support of public funding, in order to enable donor conceived people conceived in the UK before 1991 (whose details were not kept on the HFEA’s Register of Information) to make contact with genetic relatives through DNA testing and other methods of matching.

As a result of these actions, the question of whether the existing law breached article 8 of the Human Rights Act 1998 (justifying a declaration of incompatibility) did not need to be determined by the court.

The action taken by the government was in response to the High Court’s judgment, and represented a clear acknowledgement of the importance of providing access to information for donor conceived people.  The policy encompassed people conceived both before and after 1991 (although acknowledging the different means available for accessing information in each case).  This is inevitable given that, since human rights issues were engaged, they affected people irrespective of the whether they were conceived before or after 1 August 1991.

In 2008, additional steps were taken through the Human Fertilisation and Embryology Act 2008 (following rigorous Parliamentary debate) which further extended the rights of donor conceived people to information about their genetic heritage.  Section 31 of the Human Fertilisation and Embryology Act 2008 allows all donor conceived people whose details are kept on the HFEA Register of Information to have the opportunity to contact genetic siblings in adulthood, thereby extending access to information on the register.  Section 31ZF of the HFEA 2008 also made explicit provision allowing the HFEA to run or to fund a ‘voluntary contact register’ (in practice UK Donor Link) to support people conceived before 1 August 1991.  This therefore represents a recent Parliamentary endorsement of support for UK Donor Link, at the level of primary legislation.

I know that others have written to you emphasising the importance of UK Donor Link and the excellent work that it does for donor conceived people conceived in the UK before 1 August 1991.  In addition, I urge you to consider the legal context of support for donor conceived people in the UK, and the potential human rights implications of any withdrawal of funding.

Yours sincerely, Natalie Gamble

Further information about donor conception law in the UK is available on our website.

If you would like to add your support and write to the Minister of Health, her details are Anne Milton, Public Health Minister, Department of Health, Richmond House, 79 Whitehall, London SW1A 2NS.

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Completion of the UK’s new fertility laws welcomed today

Tuesday, April 6th, 2010

The last piece of the government’s flagship Human Fertilisation and Embryology Act 2008 came into force today, completing the first major overhaul of the UK’s fertility laws in twenty years. The HFE Bill is a major piece of government legislation which has updated the UK’s 1990 laws to bring them into line with 21st century scienific and social advances. It has introduced important changes including:

* new rights for lesbian partners to be recognised as parents after sperm donation,

* the abolition of clinics’ obligation to consider a child’s need for a father before offering fertility treatment,

* the broadening of the extended storage rules for gametes and embryos, allowing more people to store precious embryos for longer,

* new rights for donor conceived people to make contact with genetic siblings,

* a clearer legal framework for preimplantation genetic diagnosis, and

* the widening of surrogacy laws to allow same sex and unmarried couples to apply for legal parenthood.

The Act has been brought into force in stages, with the new parenthood rules on donor conception in force first for conceptions after 6 April 2009 and the bulk of the Act in force on 1 October 2009. The final pieces of the jigsaw, which came into force today, are the changes to surrogacy law, allowing same sex and unmarried couples to apply to court to become the parents of a surrogate born child and updating the court rules and procedures. This completes the implementation of this major piece of government legislation, rather fittingly today, the day on which it has been announced that this Parliament will be dissolved.

We are proud to have played a role at the forefront of these important legal changes, championing the position of fertility patients and same sex parents. Our contributions to the public and Parliamentary debate and to the legal changes include:

* Helping to secure the important new rights for same sex parents (work for which Natalie was nominated by gay rights organisation Stonewall as their Hero of the Year 2008, named by Diva magazine as one of the UK’s most influential gay women, and invited to 10 Downing Street to meet the Prime Minister last month);

* Winning a last minute government U-turn on embryo storage which allowed surrogacy patients to save embryos from destruction and store them for an extended period;

* Lobbying for changes to surrogacy law, which were debated in Parliament (but sadly not adopted) – we are continuing to campaign on this;

* Winning improvements to nationality law for British parents of children born through surrogacy abroad following our contribution to the Department of Health’s consultation on the new parental order regulations.

Find out more about the legal changes on our website, relating to donor conception, surrogacy and fertility treatment.

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Posted in Co-parenting, donor conception, embryo storage law, fertility law, gay men surrogacy, international surrogacy, lesbian parenting, Natalie Gamble, Natalie Gamble Associates news, UK surrogacy | Comments Off

Human Fertilisation and Embryology Act 2008 comes into force today

Thursday, October 1st, 2009

Today marks an important step in English fertility law, with the Human Fertilisation and Embryology Act 2008 – the first major review of UK fertility law for 19 years – coming into force. Our website has been fully updated to take account of all the changes which apply from today, so you can read more about what the changes mean for fertility patients, including:

Embryo and gamete storage – the rules will from today be fairer and more straightforward. Everyone will qualify for ten years’ storage, and patients who are ‘prematurely infertile’ will be able to extend this period, with no exclusion of surrogacy patients and those storing gametes or embryos as donor recipients. More from our website on embryo storage law.

An end to discrimination for lesbian and single women – fertility clinics will no longer have to consider a prospective child’s ‘need for a father’ (they will now have to consider the child’s need for ‘supportive parenting’), making it clear that access to treatment should be available equally to different family structures. More from our website on fertility law and access to treatment.

Donor information rights – Donor conceived people will have new rights to contact genetic half siblings and will be able to access some information about their donor at a younger age. Donors will also have new rights to limited information. More from our website on donor conception law.

Preimplantation genetic diagnosis – The law is clarified as to what kinds of preimplantation embryo testing are acceptable within the framework of the law. More from our website on embryo testing law and PGD.

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