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Fertility patient organisations grapple with implications of High Court donor conception ruling

Saturday, February 2nd, 2013

NGA has been contacted by UK patient organisations trying to clarify the implications of the High Court’s ruling, which has allowed two sperm donors to argue in court that they should have rights of contact with their biological children. NGA has been representing the lesbian mothers in this case.

The ruling received a lot of press attention yesterday (including on the front page of the Daily Mail, and in the Guardian, Telegraph, Independent and BBC). Natalie spoke to the Human Fertilisation and Embryology Authority, the British Fertility Society, the National Gamete Donation Trust and the Donor Conception Network – all seeking further information about what to say to patients, donors and donor conceived families who were contacting them.

The HFEA and the BFS have issued press statements in response to the ruling.

We thought it would be helpful to provide a clear summary of what the ruling means for these organisations and others concerned about this:

* The ruling only gave the two donors the right to argue their case in court. It is not yet know whether they will be given any rights of contact with the children.

* The reason for the decision was very fact specific, a result of the fact that the donors were known to the lesbian mothers and had contact with the children in their early months before relationships broke down. The court was satisfied, on the facts, that the donors had sufficient connection with the children to at least justify their cases being heard in court.

* The ruling is therefore exceptionally unlikely to apply to donors who have had no contact with the child – for example unknown donors through licensed clinics.

* However, the ruling could apply to other types of known donors, including known sperm or egg donors who have donated through a licensed clinic, if they can demonstrate sufficient connection with the child in practice. Although in this case conception took place outside a licensed clinic, the law which provided that these men were ‘not to be treated as the father for any purpose’ is the same law which excludes the status of other types of egg and sperm donors.

* The ruling does not in any way affect donors’ responsibilities – it does not make it possible to hold a donor legally or financially responsible for a child they help conceive.

For further information on the case (including the judgment) see our blog. You can also follow us on Twitter for updates.

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Posted in Co-parenting, donor conception, fertility law, Natalie Gamble Associates news, same sex parenting | Comments Off

Landmark High Court ruling on sperm donation and same sex parenting

Thursday, January 31st, 2013

The High Court has today made a landmark ruling, allowing two civilly partnered sperm donors the right to ask for contact with their biological children (against the wishes of the children’s respective lesbian mothers), but also warning that it will consider the need to protect the lesbian families carefully before a final decision is made. NGA is representing the mothers in the case of Re Z, one of the two connected cases.

The ruling has significant implications for same sex parents and families created through donor conception. It is the first case to test rights for same sex parents introduced by Parliament in 2008, which give lesbian mothers the same legal protection following sperm donation as opposite sex parents. Under the Human Fertilisation and Embryology Act 2008, the mothers in this case, as civil partners, are the legal parents of their children. The biological fathers, like sperm donors through clinics, are expressly excluded from being treated as the legal fathers ‘for any purpose’. Relationships broke down after the men each sought more involvement than the mothers agreed. They applied to court, and the court has now ruled that they can have their cases heard.

The court’s decision opens the door to legal claims from sperm donors who want involvement but have no legal parental status. But the judgment also makes it clear that every case will be considered carefully. Donors will not simply be treated as other fathers are, and protecting the primary family is also a material consideration.

Donors will only be able to seek redress on the basis of the the particular facts, where this is justified. In Re G and Re Z, the fact that the donors had had early contact with the children was what persuaded the court that they should at least be allowed to have their cases heard. However, although the court has given the donors ‘leave’ to apply, it does not necessarily follow that they will actually be given any rights of contact, and the court has warned that the underlying legal framework will be a significant consideration, and that the level of contact originally being sought may be considered ‘wholly unrealistic’.

Mr Justice Baker suggested that there was no principle being created of automatic rights for donors to lesbian couples: “I endorse the submissions that the policy underpinning these reforms is an acknowledgement that alternative family forms without fathers are sufficient to meet a child’s need… Thousands of children in this country are being brought up happily and successfully by same-sex couples.”

Going forward, there are some significant lessons for same sex parents (and anyone conceiving through known donation):

Lesbian mothers need to understand that being named on the birth certificate does not give absolute protection. Conceiving with a known donor will always carry some level of risk if things don’t work out as intended, so mothers should be very careful about giving any level of contact unless they are absolutely sure.

Gay fathers who act as known donors need to understand that their legal position may be more fragile and uncertain than they think. Men who want to be fully involved fathers will not have any automatic rights if there is a dispute.

Everyone going into known donation or co-parenting arrangements should be crystal clear about their expectations from the outset. Setting the strongest possible foundations at the start is the best way of avoiding later problems. One way to do that is to put an agreement in place, but the real key is good communication – an agreement is a means to that rather than an end in itself. There is more from our blog on How to Avoid a Known Donor Dispute.

You can read the judgment in full to Re G (a minor) and Re Z (a minor) [2013] EWHC 143 (Fam).

At NGA, we provide leading specialist advice to parents conceiving through known donation, including same sex parents, both male and female, and leading representation to those in disputes. We have worked at the cutting edge of the law, pushing boundaries, for many years, and were instrumental in helping create the rights for same sex parents in the HFE Act 2008. There is more information on our website about known donor disputes and about planning known donation for mothers and for fathers. You can also follow us on Twitter for the latest updates on our work and campaigns.

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Posted in Co-parenting, donor conception, fertility law, Natalie Gamble Associates news, same sex parenting, Uncategorized | Comments Off

International surrogacy – judge awards parenthood to gay dads after Indian surrogate ‘disappears’

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.

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