Gamble & Ghevaert

Posts Tagged ‘sperm donation law’

Sperm donor or dad? Article in G3 magazine

Tuesday, August 7th, 2012

Sarah 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.

 

Gaydar radio on the options for same sex parents

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.

Birth mother vs non birth mother – children law for lesbian parents who separate

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, a solicitor at Natalie Gamble Associates

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.

Find out more from our website about divorce and relationship breakdown and lesbian parenting.

The Natalie Gamble Associates family has grown

Thursday, March 15th, 2012

Sarah Wood-Heath, a solicitor at Natalie Gamble Associates

We love it when we get happy news from the families we work with, but today we too have a chance to announce a new arrival.

Solicitor Sarah Wood-Heath has joined our team from London.  With five years’ experience as a qualified lawyer, Sarah’s background is in complex disputed family and children law and she has particular experience working for alternative families.

We are thrilled to welcome Sarah on board to help us meet growing demand for our specialist expertise.  Sarah will be an integral part of our team’s legal work, and will have particular responsibility for supporting parents in disputed situations (including known donor disputes and financial claims in respect of children) for which we are seeing greater and greater need.  With recent publicity surrounding same sex parenting disputes, an issue with which we have long been involved (including helping to make the new laws for same sex parents in 2008), this is an area of our practice we expect to keep growing.  Sarah is also able to help with relationship breakdown and pre-nutial agreements.

Sarah has two small sons, and she and her family are loving their relocation to the New Forest in order to join us.

You can contact Sarah on 0844 4560017 or at sarahwh@nataliegambleassociates.com.

Egg and sperm donors – how did it go?

Friday, March 2nd, 2012

Following her article written for our blog back in August last year, Kriss Fearon from the National Gamete Donation Trust has asked us to post this message about the important research the NGDT is doing about egg and sperm donors’ experiences, and how you can still help:

Results are coming in from the National Gamete Donation Trust’s donor satisfaction survey, which asks egg and sperm donors what it was like to be a donor.  We’re using what donors tell us to make positive changes to the way donors are treated. The more answers we get, the stronger the message, so if you’ve been a donor, we really need to hear from you!

Sperm donors told us: they would like more information about the families, help with the goodwill message and that some clinics could provide better donation facilities.   Egg donors told us: they would like more support during the donation cycle, clearer information on aftercare and to be reminded it’s OK to ask for pain relief if they need it.   Other requests are to make counselling and clinic appointments at times that are easier to arrange around working hours and to give advice on ways of talking about the donation with friends and family.

The survey is running until the beginning of June 2012, so there’s still time for you to reply. If you’ve been a donor, or just thought about it, please take ten minutes to tell us how it went.

Find out more about the National Gamete Donation Trust

Find out more about the law on egg donation and sperm donation from our website

Known donation on trial

Friday, February 24th, 2012

By Natalie Gamble, Published in BioNews 645

The family court has been making law on known donors, with a number of recent disputes between known sperm donors and lesbian mothers. 

In one recent case (reported in BioNews 644), the Court of Appeal is considering whether a gay sperm donor should have a right to regular contact with his biological son, conceived with his ex-wife who lives with a female partner.  The adults had agreed verbally at the outset that the same sex couple would be the parents and that the man would not be involved in bringing up the child. The boy’s mothers say they feel ‘bitterness and betrayal’ at his change of heart.  The case follows another recent decision by High Court judge Mr Justice Hedley awarding gay dads contact with two donor conceived girls, aged 10 and 6, following a long and bitter legal dispute with the children’s lesbian mothers about their role (1).

What is interesting is the legal framework the court is developing for dealing with these kinds of issues, and how very different they are from traditional mother-father disputes.

How does UK law work?

UK law is, in theory, clear and certain about the parentage of children conceived through assisted reproduction:

The woman who gives birth is the only legal mother, and the egg donor’s claim to motherhood is excluded.

Spouses (and since April 2009 civil partners) who conceive with donated sperm are both legal parents, and the donor is not the legal father.

A sperm donor who donates through a licensed clinic as a donor (and not as a co-parent) is not the legal father, whatever the marital status of the recipient.

But known donation situations challenge the simplicity of these black and white rules. Where a donor is known to the family, he or she may be invited to play some kind of role in the child’s upbringing. This happens frequently where solo or lesbian mothers conceive with a known sperm donor. But the nature of the donor’s (or co-parent’s) role can extend across a very broad spectrum from minimal contact to full co-parenting, with a million different shades of grey in between. There is obvious scope for dispute if the adults involved later disagree about the nature of that role.

The court’s approach

The law in these situations is complicated, but any known donor can, as a minimum, ask to apply for rights of contact with the child. The UK family court has incredibly flexible powers and the child’s welfare, rather than the wishes of the adults, is its paramount consideration.

In deciding such cases, the court will typically ask: What was intended at the outset and what is the current reality of the arrangement? What is the purpose of the proposed contact? Will it undermine the main family unit, and particularly the non-biological parent?

The trend of the case law seems to be heading towards drawing a broad distinction between known donation arrangements where the known donor gets limited ‘identity contact’, and co-parenting arrangements where the father has a more significant ‘secondary parenting’ role. However, every case is different and the court is typically concerned not to undermine the integrity of the primary family unit (usually the lesbian mothers). In practice, donors usually get a lot less than they are asking for and they will be disappointed if they expect to be treated simply as traditional separated fathers.

The significance of donor agreements

A key question is the extent to which the court will pay attention to any written donor agreement. Even if not legally binding, will it be given weight by the court? The recent case of the two donor conceived girls gives the strongest indication yet, Mr Justice Hedley noting that ‘the court will be bound to give careful consideration and weight to any such agreement’.

However, what is perhaps most interesting is that not one of the cases yet heard by the court has involved a written donor agreement. This does not surprise me – in my fertility law practice I see how known donor disputes are almost invariably a product of mismatched expectations between those involved, with latent problems present from the very outset. The process of putting something in writing (however that is done) is the best insurance against a dispute, facilitating thorough and honest discussions about the role and status everyone will have.

I have, on one or two occasions, had clients who decided to abandon plans to co-parent after going through this process, deciding on reflection that they were better suited to a different route (usually sperm bank donation for lesbian mums, or surrogacy for gay dads). These are the cases, I am sure, where legal disputes have been narrowly avoided. 

Lessons learned

It would be a shame for anyone to think, as a result of these cases, that known donation arrangements are a bad idea or that those entering into them are reckless or foolish. I have over the years seen some wonderfully successful co-parenting arrangements, where children are nurtured with absolute transparency about their genetic heritage and a wealth of love and security from committed parents (usually more than two).

But known donation is not the right path for everyone. Where it goes wrong, it goes horribly wrong. I am sure that these disputed cases will not be the last – we are certainly dealing with more disputes of this kind than we were three or four years ago – and I am pleased that the court is developing a specialist jurisprudence which affords these situations the sensitive approach they deserve. In the meantime, anyone entering into a known donation arrangement would be sensible to pay heed to these cautionary tales, and to take on board the need to plan thoroughly, talk honestly and listen carefully, before they get pregnant.

 SOURCES & REFERENCES

British and Irish Legal Information Institute | 20 December 2011
 

How to avoid a known donor dispute

Friday, February 10th, 2012

The courts are all talking about same sex parenting disputes.   The Court of Appeal has this week been hearing from a donor applying for contact with his biological son against a lesbian couple who say they feel “bitterness and betrayal” (the case has not yet been decided but you can read the coverage in the Telegraph here).  This follows the decision just a few weeks ago by High Court judge Mr Justice Hedley (in P&L (minors) 2011, available here in full) which dealt with a very long and bitter dispute about the role of gay donor dads to two children (aged 10 and 6) being raised by their lesbian mothers.  The courts are feeling their way with what they call new models of alternative parenting, and trying to develop an approach for these types of cases, which are far from traditional family law disputes.

Having advised many same sex parents (both at the planning stages and those who end up in dispute) we see some wonderfully successful co-parenting arrangements.  But where they go wrong, they go horribly wrong.  What is interesting, though, is that parents always seem to fall into one camp or the other.  I can honestly say that none of the clients we have advised at the planning stage has ever come back for legal representation later.  Equally, not one of the clients we have represented in disputes took legal advice at the outset.

So here are our tips on how to make your co-parenting or known donation arrangement a successful one, and how to avoid ending up in court:

Talk, talk, talk (and more importantly listen, listen, listen)

Don’t rush into trying to conceive.  Get to know each other, have honest conversations about the roles you will have and how much involvement you all want.  Be as clear as you can about your expectations and be honest with each other and yourselves.  If things don’t feel right, have the courage to walk away.  There are always other options.  You could find another donor or co-parent, or choose unknown donation (as mums) or surrogacy (as dads) if what you really want is parental autonomy.

 

Understand what roles you will all have

Justice Hedley was keen to “stress the importance of agreeing the future roles of the parties before the first child is born“.  And this fits with our experience.  Almost all the cases we have seen which have ended up in dispute are ultimately about status.  Is the biological dad a father or a donor?  Are you equal co-parents, or primary and secondary parents, or parents with another adult role model?  Make sure you talk about how you see yourselves and each other, as well as the day to day practicalities of managing your child’s care.

Understand how the law works

The law on parentage is complicated, and who will be the legal parents (and what goes on the birth certificate) depends on the facts, including how you conceive and the birth mother’s marital status.  There may be all sorts of different options, both for choosing who the legal parents are and for giving some parental status to the other co-parents if you want to, and problems can often arise where parents have expectations (for example about what goes on the birth certificate) which can’t be met.  Take legal advice, or check out the free information on our website about this.

Put in place a written agreement

Donor agreements (or preconception agreements) may not (strictly) be legally binding, but they are incredibly useful.  I have always advised parents that putting something in writing helps with the planning, facilitates honest conversations and sets a framework which everyone will feel morally bound by, giving clarity and transparency and setting a really strong foundation.

However, it now seems they may be more legally binding than we previously thought.  Although the issue is still untested (the parents in P&L did not have a written agreement, which I suppose comes back to my point that it is not the parents with properly prepared legal agreements who end up in court) the case suggests that the court will pay attention if there is one.  Mr Justice Hedley said, in the strongest indication yet, that “the court will be bound to give careful consideration and weight to any such agreement“.

There is no standard format for a donor or co-parenting agreement, but having something which is accurate and personal to you (and prepared with a solid understanding of how the law applies in your particular circumstances) will be much more helpful than any standard pro forma.

If you need help with planning a co-parenting or known donation arrangement, or if you need representation in a dispute, feel free to contact us.

ABA Conference in Las Vegas brings together fertility lawyers from across the globe

Monday, October 31st, 2011

Natalie and Helen were delighted to attend the American Bar Association’s Family and Assisted Reproductive Technologies (ART) conference in Las Vegas (26-29 October 2011).  The conference brought together the world’s leading experts in assisted reproduction and surrogacy law, with lawyers from many US states (where laws vary enormously), Germany, Italy, Canada, Australia, the Ukraine, India, Brazil and Greece.  Natalie was invited to speak about English law at a packed session, and was proud to represent the UK alongside leading fertility law experts from Germany, Italy, Australia and Canada.

The ABA conference comes at a key time, with the Hague Conference putting surrogacy on its agenda for international regulation, as well as increasing numbers of clients crossing borders for surrogacy and ART.  We were thrilled to meet so many professionals who, like us, understand and care passionately about helping people build families successfully.  It was abundantly clear that surrogacy lawyers across the globe need to play a key role, both in helping parents get the best legal protection and recognition possible (while national laws are so disastrously mismatched), and in advocating more widely at an international level as a voice for those conceiving in alternative ways.

Thank you to the American Bar Association for hosting such an inspiring international conference, which we know will be just the first step in building a strong international community of advocates for alternative families.

More information about international surrogacy law is available on our website and in particular check out our area for non-UK advisors and US attorneys.

HFEA shift on donor payments will make little difference

Thursday, October 20th, 2011

The HFEA announced yesterday that, after an extensive public consultation and review, the system for paying egg and sperm donors in the UK is changing.  Instead of donors being paid out of pocket expenses plus an allowance for loss of earnings of up to £250, egg donors will now be paid a blanket £750 per cycle, and sperm donors £35 per visit.

There was much discussion yesterday about the new payment to egg donors of £750 and whether this would encourage women to donate eggs for the money who wouldn’t otherwise have done so.

However, if we understand the HFEA’s press release correctly, this seems to be a bit of a misunderstanding.  The new figure of £750 does not seem to be an increase on the existing £250 cap, but rather a change of how the system works.  Women used to be able to claim their actual (unlimited) out of pocket expenses plus an allowance of £250 to represent (nominally) loss of earnings.  They can now claim £750 to cover everything, no matter what their actual expenses are.  In practice we know that expenses during an egg donation process can mount up very quickly, covering things like travel, drugs, the cost of scans and blood tests at a local hospital, childcare and time off work for consultations, counselling, scans and egg collection.  It’s not an easy or an inexpensive process.  The HFEA’s new rule therefore may not mean more money for donors, just a simpler way of dealing with expenses.  We think the change is less significant than it sounds, and will make little difference to donors or recipients in practice.

However, if nothing else, we hope that all this discussion about donation in the media will encourage donors to come forward.  Working with both donors and recipients, we know how much the donation process involves and we know what a life changing difference donation makes to people’s lives.  We salute all the donors in the UK who go through this to help others become families and we hope they know how very much they are appreciated.

There is more information about donation in the UK on our website.

 

 

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.