Gamble & Ghevaert

Posts Tagged ‘surrogacy law’

High Court deals with legal mess after parents through UK surrogacy separate

Friday, March 21st, 2014

A three year old boy born through surrogacy has been left in legal limbo after his parents separated without getting a parental order.

The boy had been born through a UK surrogacy arrangement involving the intended mother’s friend.  She offered to act as a surrogate for them and conceived by artificial insemination at home using the intended father’s sperm.  The baby was born and handed over to the intended parents, and (in accordance with the law) the surrogate and the intended father were named as the parents on the birth certificate.  However, the parents separated shortly after the birth (and later divorced) and missed the deadline to apply for a parental order which would make them legal parents and extinguish their surrogate’s responsibilities.

Like many other divorced couples, they became embroiled in court proceedings relating to care arrangements for their son. But Mrs Justice King, hearing the case in the High Court, had to consider the implications of the unresolved surrogacy context.  The problem was that the boy’s legal parents were the surrogate and the father, while the mother (who had cared for her son since birth) was not a parent and had no parental responsibility.

Ultimately the judge endorsed a solution the adults proposed; the boy was made a ward of the court, the surrogate promised not to exercise her parental responsibility, and the parents were given a shared residence order (enabling the mother to have decision-making authority).  However, parenthood was not reassigned.  This means that the surrogate will permanently remain the child’s legal mother, and the boy will permanently remain a ward of the court.

The decision seems inadequate, given that the welfare of the child is the court’s paramount consideration.  How is it in this child’s best interests to have the wrong legal mother and to remain a ward of the court?  However, the court had no choice (bar challenging the law on human rights grounds, which perhaps should have been considered).  The only legal mechanisms which allow a full transfer of parentage are parental orders and adoption orders.  Under current legislation, the court had no power to make either order, because the absolute six month deadline for applying for a parental order had expired and because the parents were neither married nor living together.

Mrs Justice King has said that the case is a cautionary tale for parents who enter into informal surrogacy arrangements which do not involve UK licensed fertility clinics.  She asks for protocols to be put in place at hospitals to ensure that parents are better protected and given the right information.  But the problem here goes much wider, demonstrating why we need better law for UK surrogacy which is less restrictive and more focused on protecting the child’s welfare.  For further comment and reflection on how we think UK surrogacy law could be improved, see the Brilliant Beginnings blog.

One final lesson to learn from this case:  take care when choosing your surrogacy lawyer.   The judge criticised the Birmingham solicitors involved in this case who had drawn up a surrogacy contract for the intended parents, presumably unaware that doing so was a criminal offence.  Increasing numbers of family lawyers are offering surrogacy law services but, as this case shows, it cannot be assumed that all surrogacy solicitors are equal.

There is more information about surrogacy law on our website.

New HFEA rules on surrogacy come into force today

Tuesday, October 1st, 2013

The HFEA’s new Code of Practice, which comes into force today, contains new guidance for UK fertility clinics dealing with surrogacy cases.  The changes affect how clinics deal with the forms which allocate legal parenthood in surrogacy cases.

Cases where the surrogate is married or in a civil partnership

If the surrogate is married or in a civil partnership, she and her husband (or civil partner) will be the legal parents of the child.  There may be some rare cases in which the surrogate’s spouse does not consent to the arrangement as a question of fact (for example if the couple are separated) and in such cases the clinic should obtain evidence of this by asking the surrogate mother to complete and sign Form LC.  However, in the vast majority of cases a surrogate’s spouse cannot simply opt out of becoming a legal parent by signing a withdrawal of consent form.

The HFEA gives new guidance making this clear, and instructions to clinics about how the paperwork should be completed.

Cases where the surrogate is not married

If the surrogate is legally single (or if her spouse genuinely does not consent), there is new guidance on what clinics should do.  The HFEA no longer says that in these circumstances the child has no second legal parent.  Instead, the new rules provide that there are choices to be made as to who can be named on the child’s first birth certificate with the surrogate mother (something which brings the HFEA guidance into line with the approach of the family courts and register offices).

In practice, there are three options and clinics will need to consider the alternatives carefully with patients before treatment proceeds:

1) Do nothing – the intended (biological) father will be the legal father and can be named on the birth certificate with the surrogate.  No parenthood election forms need be signed.

2) Nominate the intended mother as the other parent.  The clinic will need to ensure that the new the parenthood election forms for surrogacy (Forms SWP and SPP) are signed by both women before conception.  This enables the two women to be named on the birth certificate together when the child is born.

3) Nominate a non-biological father as the father (e.g. the other dad in a gay couple or, probably more rarely, an intended father in a case where a couple is conceiving with the intended mother’s eggs and donor sperm).  The clinic will need to ensure the parenthood election forms (SWP and SPP) are signed by the nominated non-biological father and the surrogate mother before conception.  The non-biological dad can then be registered on the birth certificate with the surrogate.

The parenthood election forms are critical documents which patients will need when they go and register their child’s birth, so it is important that licensed centres provide patients with a copy and keep a copy on file.  They must be signed before artificial insemination or embryo transfer to be legally effective.

Intended parents will still need to apply for a parental order after their child is born to secure their joint parentage and to extinguish their surrogate’s legal responsibilites.  This will, in the long run, give the intended parents a birth certificate naming them both as the parents - the new HFEA rules only deal with the interim position before this process is complete.  It is therefore also important that licensed centres are familiar with parental orders, or otherwise make sure their patients have legal advice.

There is more information and FAQs from the HFEA here and more information about legal parenthood after surrogacy on our website.  We have assisted the HFEA with its new guidance, and have worked with hundreds of families created through surrogacy.  We can offer training to licensed centres, and advice and support to families with navigating these new rules.

 

European Court of Justice – should mothers through surrogacy have a right to maternity leave?

Monday, September 30th, 2013

The European Court of Justice has given conflicting opinions in two cases concerning whether European mothers through surrogacy should be entitled to maternity leave.

In the first case, the Advocate General (adviser to the court) said that a UK mother should be given maternity leave and that she should share her entitlement with her surrogate mother.  The intended mother was employed at an NHS hospital and had a baby through surrogacy who she cared for – and breastfed – from birth, before she was granted a parental order by the UK family court giving her legal responsibility as a parent.  The ECJ preliminary opinion was that she had been discriminated against under EU law by being denied maternity leave rights.

In the second case, from Ireland, a different Advocate General expressed a different view.  In this case, a mother who worked as a teacher with a child born through surrogacy in California was not discriminated against by having been denied the right to maternity leave.  The adviser to the court said that whether Ireland should extend the scope of maternity leave to cover mothers through surrogacy was a matter for the Irish Parliament.

The differences are on the face of it puzzling given the factual similarities between the cases, particularly with the opinions given virtually simultaneously.  However, each case was argued under different parts of European anti-discrimination law, and there was a key difference in that Ireland does not allow for surrogacy, whereas UK law does.

As far as UK parents are concerned, the UK government has in any event recently announced its decision to extend maternity rights to parents through surrogacy, and is in the process of changing UK law through the Children and Families Bill.  It is something we have been campaigning for for more than five years, and we are proud to have contributed to the new legislation (more information about this here).  The new law is currently completing its passage through the House of Lords and is expected to come into force in 2015.  UK law will then apply equal rights for parents through surrogacy, with both straight and gay couples permitted to claim paid time off work to take care of their newborn children.

In the meantime, and until the new UK legislation come into force in 2015, the ECJ opinion will give futher support to any parents denied leave who wish to bring discrimination claims against their employers.

NGA advises Corrie on surrogacy

Wednesday, June 26th, 2013

We have been working with Coronation Street on their surrogacy storyline (the first in a mainstream UK soap) which has come to a head this week, with surrogate Tina making the emotional decision about whether to hand baby Jake back to his biological parents Gary and Izzy.

We have been helping Corrie to get the law right, but what would happen in reality?  Do surrogates often change their minds, and what is the legal position if they do, particularly if it is not their biological child?

UK law says that the surrogate is the legal mother, whether or not she is not the biological mother.  The intended parents can apply to court for a new birth certificate after the birth - a process which ends the surrogate’s motherhood – but only with her consent.  If she withholds it, the surrogate remains the legal mother, although the family court can order that the child should live with the intended parents anyway.

But the legal position rarely fits with what happens on the ground – in reality, surrogacy arrangements go wrong surprisingly rarely.  The structure of the law would make you think that surrogates change their minds often, and need to have their rights protected.  In reality, the picture is very different.  There have now been over 1,000 parental orders granted in the UK (surrogacy cases with no dispute) and only 2 reported cases where a surrogate has sought to keep the baby.  In both cases, the surrogate was also the biological mother, and in only one of them did she win her case.

So what would happen if a gestational surrogate like Tina (who is not biologically connected) wanted to keep a surrogate baby?  The answer is that we just don’t know because it has never yet happened in the UK.

And what will happen with Tina, Gary and Izzy?  Well, we know, but we aren’t allowed to tell you…

There is more information about surrogacy law on our website.  You can also read what Natalie thinks about whether surrogates should still have an absolute right to change their minds under UK law here.

Nicola speaks at the Want To Be A Parent Show

Wednesday, June 12th, 2013

The NGA team were delighted to attend the ‘Want to be a parent’ show in Cardiff at the weekend.  It was great to meet lots of would-be parents, as well as other exhibitors with one common focus – building families in alternative ways.  Whether through donor conception, co-parenting, surrogacy or adoption and whether as a single parent, same sex parents or straight parents, there was something for everyone.

Nicola talked on surrogacy, covering both UK and international arrangements and the associated legal and practical aspects that parents should consider.  Other talks included ‘fertility for the over 40s’, ‘adoption and fostering’ and ‘single mothers by choice’ all led by a range of experts in a variety of fields.

We hope to see you there next year!

For more information on how we can help you with any of these family building options contact us here

High Court judge warns ‘loud and clear’: international surrogacy parents need a UK court order

Saturday, May 25th, 2013

In a High Court ruling published today (a case in which we represented the parents), Mrs Justice Theis has warned parents of children born through international surrogacy that they must apply to court in the UK if they want to be the legal parents of their children.

She said: “The legal relationship between children born as a result of surrogacy arrangements and their intended parents is not on a secure legal footing without [a UK parental order] being made. That can have long term legal consequences for the children… The message needs to go out loud and clear to encourage parental order applications to be made in respect of children born as a result of international surrogacy agreements, and for them to be made promptly.”

Mrs Justice Theis was granting parenthood to a gay couple who had conceived twins through surrogacy in California. She said: “I am entirely satisfied the applicants have acted in good faith at all stages.” She published her decision to send a message that British parents through surrogacy need to engage with UK law. Increasing numbers are travelling to places like California where there are commercially run surrogacy agencies. In the UK, it is a criminal offence for third parties to broker surrogacy arrangements for profit – something the judge pointed out, saying it was not part of the case for her to consider the legality of the actions of the agency involved (the British Surrogacy Centre, which has an office in Essex) but she sent a copy of her judgment to the relevant UK authorities for investigation.

UK law does not recognise Californian birth certificates naming the intended parents, instead treating the surrogate and her husband as the parents. British parents need a parental order from the UK family court to become the legal parents in the UK. Without it, they have no right to make decisions as parents and may be caring for their child illegally. Their child may lack basic legal rights to inheritance, child support and British nationality. If the parents do not apply to court within six months of the birth, they lose the chance of getting a UK birth certificate forever.

In this case, the parents applied and the court made a parental order. The surrogate – in accordance with Californian law – had been paid $56,750 plus expenses for her inconvenience.  Californian surrogacy attorney Michelle Keeyes, who works with many couples from the UK, says: “In the US it is typical to pay a first time surrogate approximately $25,000-$30,000 for her time and inconvenience over the course of the pregnancy. For UK parents, it is imperative that they retain legal counsel in both the UK and the US.”

Payments for surrogacy are not illegal under UK law, but if more than ‘reasonable expenses’ is paid the court has to weigh things up carefully before making a parental order. This is not the first time the High Court has ‘authorised’ a commercial payment to a foreign surrogate, although the amount in this case was larger than in any previous case. As before, making an order was justified because it ensured the children’s lifelong security.

You can read the full judgment in the case of J v G (2013) EWHC 1432 here, or find out more from our website about international surrogacy law.

HFEA to update surrogacy guidance to UK clinics

Sunday, April 7th, 2013

The Human Fertilisation and Embryology Authority has voted to update the guidance it gives to UK fertility clinics on surrogacy. The new Code of Practice will:

* clarify what UK clinics should say to surrogacy patients, and
* update clinic procedures and forms for surrogacy.

The HFEA voted to make these changes (following advice from NGA and its own lawyers) at its meeting on 20 March 2013 and will now undergo a period of consultation on the practicalities, before the new Code of Practice is introduced on 1 October 2013. This includes a workshop for clinics and professionals practising in surrogacy, to be held at the HFEA on 30 April 2013.

We congratulate the HFEA on a very sensible decision, which will mean clearer guidance for parents and clinics dealing with increasing numbers of surrogacy cases. In particular, it will be made clear that where a surrogate is unmarried, one of the intended parents (whether gay or straight, and whether or not a biological parent) can be named on the child’s initial birth certificate together with the surrogate. This approach will make the HFEA’s guidance entirely consistent with longstanding practice at register offices and in the family courts.

You can find out more about the HFEA meeting on 20 March here, and there is more on our website about surrogacy law.

Note added – Natalie has written an article for Bionews on this issue ‘The HFEA gets into gear on surrogacy’ which you can read online here.

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.

Natalie on the Today Programme – who should have the rights where a surrogate baby is disabled?

Thursday, March 7th, 2013

Natalie was interviewed by James Naughtie on this morning’s BBC Radio 4 Today Programme about surrogacy (listen again here). The programme covered a US surrogacy case which hit the news after a US surrogate mother refused to terminate her pregnancy at 21 weeks when it was discovered that the baby would be born severely disabled.

In the UK, surrogacy law gives all the rights to the woman who carries the pregnancy – she is the legal mother. Although a case like this has never happened in the UK, if it did there would be no doubt (as there was under US law) that the surrogate mother would hold all the cards. But is this the right approach?

In practice, we know on the ground that surrogacy disputes are incredibly rare. For the vast majority of cases, it would make more sense for the intended (biological) parents, rather than the surrogate, to have legal responsibilities much earlier – it’s what everyone involved wants, and the long delay transferring parenthood leaves children vulnerable for far too long. And where there are disputes, we need a more sophisticated approach to balancing the interests of all involved – surrogate, parents and child.

The real lesson of this case is that we can avoid problems like this by giving the right support at the start. Parents and surrogates need to communicate clearly, and those with radically mismatched views on termination should not proceed together. That is why it is so crazy that UK surrogacy law goes out of its way to deny those going into surrogacy arrangements the support they need. Under UK law, surrogacy contracts are unenforceable and illegal for lawyers to draft, and professional matching and brokering services are prohibited by criminal law. It’s time for that to change.

There is more information about surrogacy law and our campaigning work on our website.

NGA in Metro – should commercial surrogacy be legalised?

Friday, January 25th, 2013

Metro featured a big spread on Wednesday asking whether commercial surrogacy should be made legal in the UK.

Read Natalie’s comments on the increasing acceptance of surrogacy, and the need to create a more structured legal framework, as well as legal changes urgently needed to include single parents and to give intended parents legal status from birth. The Metro article is here.

You can also find out more about surrogacy law and our campaigning work from our website. Follow us on Twitter if you want to get involved.