Posts Tagged ‘international surrogacy’
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
Monday, November 5th, 2012
Today’s ITV Daybreak featured Kyle Casson, a single dad who we are proud to be working with on his journey to become the first single parent through surrogacy in the UK. Well done to Kyle for speaking out so bravely, and for being such a great a champion for solo dads.
Kyle spoke characterically warmly about his plans to be a father. He has always wanted children, and wants to do it in his twenties (with active grandparents) rather than waiting for a partner who may not come along. He has planned things carefully, is financially secure, has the enthusiastic support of his family, and has a surrogate who wants to help him. You can see Kyle talking about his story on ITV Daybreak here.
So what does the law say?
The law in the UK has never made it illegal to enter into a surrogacy arrangement as a single father. But it doesn’t make it easy either. Most parents through surrogacy (including gay dads and unmarried couples) can apply for a ‘parental order’ after their child is born. This is an order made by the family court which gives the intended parents a new birth certificate and extinguishes the responsibilities of the surrogate mother. Single parents are not, however, eligible to apply.
This means it is perfectly legal for Kyle to have a child through surrogacy in the UK, but the normal solution for families created through surrogacy (designed to give lifelong security and certainty for the child) is not available. He will have to get creative with using law designed for other purposes to secure his family and resolve the position of his surrogate – adoption being the best alternative to a parental order if the family court will agree to help.
Our call to action
On behalf of Kyle and the increasing numbers of solo prospective dads we are advising (some going abroad for surrogacy, others entering into co-parenting arrangements) we at NGA call for parental orders to be made available to solo parents. The law has already been extended, in 2008, to allow gay dads and unmarried couples to apply, and it is now time to allow single parents to apply too. This would bring the law into line with adoption law, which allows single parents to become adopters, and with reproductive law for women which was specifically amended in 2008 to allow solo mums to conceive through donor insemination.
We frequently see heartbreaking cases caused by the denial of surrogacy to single parents. A change to the law would benefit not only prospective solo dads like Kyle, but also single women who have survived cancer and need the help of a surrogate to carry their child, and widowed fathers who want to use embryos in storage, just as widowed mothers are able to do.
And what do we say to people (like the lady on Daybreak with Kyle this morning) who say that such solo parents who want to have children are selfish? Well, wanting to be a parent is something most human beings experience, so it comes down to whether children suffer harm if raised without a mother and a father. This is an old question for non-traditional families, and the answer (backed by long research, including by the Centre for Family Research at Cambridge University) is that children in deliberately created non-traditional families (including solo parent families) have good outcomes, and are in a very different position from children whose parents have separated. It is the quality of the relationships which matters, and not the gender or number of the parents.
Find out more from our website about surrogacy law for single parents, or about the options for gay and solo dads.
Tags: fertility law, gay men conception, gay surrogacy law, international surrogacy, international surrogacy law, ITV Daybreak, Kyle Casson, single father, solo father, surrogacy campaigning, surrogacy law, surrogacy lawyer, surrogacy solicitor, UK surrogacy
Posted in family building, fertility law, gay men surrogacy, international surrogacy, same sex parenting, UK surrogacy | Comments Off
Tuesday, October 23rd, 2012
Natalie has written a comment piece for Bionews criticising the unchallengeable position surrogate mothers are currently given by UK surrogacy law.
The law in the UK has long provided that the woman who gives birth is the legal mother. In surrogacy cases, the intended parents (one or both of whom must be the biological parents) can apply to the family court to have parenthood reassigned to them, but they are entirely dependent on the surrogate and her husband/civil partner giving their consent. If it is withheld, they cannot become the legal parents. Conversely, if the intended parents do not take responsibility, the surrogate has no means of holding them both legally responsible for the life they have created.
Natalie criticises the law as being outdated in a modern age in which surrogacy is becoming more common. Very few arrangements do go wrong (a proportion of roughly 0.02%) and where things run to plan, the current law means that parental responsibility is left in the wrong hands for far too long, contrary to everyone’s wishes and the best interests of the child. In the rare cases where things go wrong, the courts in practice decide care arrangements flexibly on a best interests basis, but legal parentage can remain unresolved forever.
It is time for us to introduce law which deals with surrogacy in a much more sophisticated way, understanding that it is a collaborative process in which the rights and responsibilities of everyone involved – the surrogate, her partner, the intended parents and the child – all need to be carefully balanced. This is what both surrogates and parents want, and what is in the best interests of children born through surrogacy.
You can read Natalie’s comment piece Should surrogate mothers still have an absolute right to change their minds? or find out more about surrogacy law from our website.
Progress Educational Trust, which publishes Bionews, 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.
Tags: Bionews, consent, fertility law, international surrogacy, Natalie Gamble, surrogacy agreement, surrogacy campaigning, surrogacy law, surrogacy lawyer, surrogacy solicitor, surrogate mother, surrogate mother change of mind, UK surrogacy
Posted in international surrogacy, Natalie Gamble, Natalie Gamble Associates news, UK surrogacy | Comments Off
Wednesday, October 3rd, 2012
The Telegraph and Daily Mail have today reported the international surrogacy case of D and L (surrogacy) 2012. The case marks a legal first: the court agreeing to make a parental order after the surrogate mother could not be found to give her consent. We are proud to have worked with the parents on this case to help win legal security for their family.
What happened?
A UK same sex couple had twin boys through an Indian surrogacy arrangement. They had taken legal advice at the outset and knew they would need their surrogate’s consent, after the birth, to become the legal parents under UK law.
They became concerned during the pregnancy that their clinic might not be as helpful as they had thought, so we wrote to the clinic explaining what was needed, and the clinic confirmed they would help. However, after the birth, the clinic refused to secure the surrogate’s notarised consent. As a final insult, our clients were sent a couriered package which they thought finally contained the consent document they desperately needed – instead it contained a single sheet of paper with a sketch of an obscene gesture. They then tried to track their surrogate down themselves, but the address they had been given for the surrogate was a false one and they could not find her.
They applied to the UK court for a parental order and asked the judge to help. Focusing on the need to give the boys legal security with their parents throughout their lifetime (and our clients’ extensive efforts to obtain the required consents), Mr Justice Baker in the High Court made them their sons’ legal parents without the surrogate’s confirmed consent.
What does the law say?
UK law requires parents who have a child through surrogacy to make an application to the family court, after the birth, for a ‘parental order’. Once granted, a parental order makes them their child’s legal parents in the UK.
The criteria for getting a parental order are strict and include that the surrogate mother (and her husband if she is married) must consent to the order being made ‘fully, freely and unconditionally’. The surrogate’s consent is ineffective if given less than six weeks after the birth – the same rule that applies if a woman gives up a child for adoption.
There is, however, a limited exception: consent is not required if the surrogate ‘cannot be found’. That power has always existed in the law, but until now has never been exercised.
What significance does the case have?
Mr Justice Baker made it clear that the power to waive consent should not be exercised lightly. Before making a parental order without the surrogate’s consent, the court must take into account the extent of efforts made to find her, and whether there is any other evidence indicating she would have been likely to have consented if found.
It is worth noting that this case does not involve a parental order being given against the surrogate’s wishes. Surrogate mothers have always under UK law had an unchallengeable right to change their mind. Whether this remains appropriate is another question but this is not what this case was about.
What to know if you are considering Indian surrogacy
The parents in this case did everything they should have done: they understood the legal processes they would need to follow, and had asked their clinic to help them comply with the requirements of UK law, which they promised to do. The fact that things went wrong was not their fault, and they were let down badly by their clinic.
While the case is, in our experience, very unusual, it does highlight that doing surrogacy in an unregulated jurisdiction is a risky business, and that parents place an enormous amount of trust in a clinic or agency a very long way away.
If you are considering Indian surrogacy, what can you do to protect yourselves?
1. Work with a reputable clinic which has a track record dealing with UK parents successfully and helping get the requisite consents.
2. Make sure that everyone understands from the outset that there will be papers for the surrogate (and her husband) to sign after the birth.
3. If possible, have direct and personal contact with your surrogate yourselves so that you are not entirely dependent on your clinic (although in practice most good clinics can make the process significantly easier by facilitating things for you).
There is more information about Indian and international surrogacy on our website.
Tags: D and L (2012), D and L (surrogacy), Daily Mail, gay men conception, gay surrogacy law, Hyderabad, India, Indian surrogacy, international surrogacy, Kiran Clinic, Mr Justice Baker, Natalie Gamble, same sex parenting law, surrogacy law, surrogacy lawyer, surrogacy legal advice, surrogacy solicitor, surrogate consent, Telegraph, UK surrogacy
Posted in fertility law, gay men surrogacy, international surrogacy, Natalie Gamble Associates news, same sex parenting | Comments Off
Thursday, September 6th, 2012
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.
Natalie was asked to write an article for journal International Family Law, in response. Standing up for parents conceiving through surrogacy, Natalie’s article, which has been published this week, calls for the Hague to ensure it looks at surrogacy with a sophisticated understanding, and challenges the UK government to look again at how UK surrogacy law works, updating laws put in place in the 1980s to make them fit for the 21st century.
Read the article in full here (Surrgacy: creating a sensible national and international framework) or get in touch to join our campaign to improve the law for parents conceiving through surrogacy in the UK and abroad. There is more information about surrogacy law on our website.
Tags: Californian surrogacy, commercial surrogacy, fertility law, gay men conception, gay surrogacy law, International Family Law, international surrogacy, international surrogacy law, leading surrogacy lawyer, Natalie Gamble, same sex parenting law, surrogacy agreements, surrogacy campaigning, surrogacy law, surrogacy lawyer, surrogacy solicitor, Surrogacy: creating a sensible national and international framework, UK surrogacy, UK surrogacy attorney
Posted in gay men surrogacy, international surrogacy, Natalie Gamble, Natalie Gamble Associates news, same sex parenting, UK surrogacy | 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
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. 
