We are a specialist family law firm, the pioneers of fertility law in the UK. With unrivaled experience in surrogacy, same sex parenting, donor conception, fertility treatment and alternative family disputes (including divorce and civil partnership dissolution), our leading expertise has been making law for many years.

Thursday, 12 December 2013

It Starts 29th March 2014 : Same-sex Marriage

Get your big day booked! First UK (England and Wales only) same sex marriage ceremonies to take place on 29 March 2014.

Widow Fights To Use Husband's Stored Sperm

Widow fights to use husband's stored sperm after statutory 10 year storage period expires

Thursday, 28 November 2013

High Court rules in favour of parents through surrogacy, despite irregularities in the US

High Court rules in favour of parents through surrogacy, despite irregularities in the US

Cornish B&B owners lose Supreme Court appeal

Supreme Court finds against business owners who turned away civil partners from their bnb

Family Dispute Resolution Week

It's family dispute resolution week which we at NGA fully support.

How do men cope with divorce?

How do men cope with divorce? Nice piece from the telegraph

Monday, 18 November 2013

UK parents expecting four 'twiblings' through surrogacy in India

The BBC has reported a surrogacy case (‘The couple having four babies through two surrogates’) involving a British couple who are anticipating the birth of four babies through surrogacy - two sets of twins being carried simultaneously by two Indian surrogate mothers.  Natalie was interviewed for the piece, by Poonam Taneja, and comments on our experience on the ground and what these arrangements are being called:
“Lawyer Natalie Gamble confirms there are similar cases but she believes it is a trend which is largely unique to the sub-continent. “We’ve seen it a few times. I wouldn’t say it’s routine but it’s not massively uncommon in India,” she says. In fact there is even a new term coined for these babies – twiblings. “They’re not quite twins and not quite siblings either,” she says.
It is indeed not the first time we have seen twiblings result from surrogacy in India - the use of more than one surrogate at the same time is an option presented to many of our clients going to India.  Embryos are created (either using the couple’s own gametes, or with the help of a donor) and then transferred into several surrogate mothers at the same time with a view to maximising the chance of a successful pregnancy.  If both surrogates get pregnant, the babies may be born at slightly different times, even though they were conceived as twins.
We understand that parents who have had long and difficult journeys are desperate to achieve a pregnancy, and that many do think through carefully the consequences of having many children at once.  But where multiple embryos are transferred, there can be significant risks involved for the parents, the babies and the surrogate mothers, and those involved may not be given enough information about the risks before they make a decision about how to proceed.  Indian surrogate twiblings is the product of an unregulated system and a world away from the strictly controlled fertility treatment which takes place under HFEA regulation in the UK, where there are strict controls on how many embryos can be transferred in order to avoid multiple pregnancies, and rigorous measures in place to make sure everyone involved gets the right information and gives full informed consent.  It is something parents should bear in mind before they embark on surrogacy in India.
There is more information on our website about international surrogacy law and immigration.

Friday, 25 October 2013

Health professionals and surrogacy agencies – last chance to contribute to Hague Conference’s work on surrogacy

We recently wrote for our blog about our evidence to the Hague Conference about whether international surrogacy should be regulated globally.  The Hague has now asked us to help them make a final appeal for information, targeting health professionals and surrogacy agencies across the world.  Here is their message:

The Hague Conference on Private International Law is currently seeking responses to two online Questionnaires on surrogacy. The deadlines for both have been extended to 8 November 2013:
• Health Professionals with experience in the field of assisted reproductive technology (ART), particularly those with experience of cross-border cases and international surrogacy arrangements.  Click here to answer Questionnaire No 3 (Health Professionals).
• Surrogacy Agencies i.e. anyone who provides intermediary services in relation to international surrogacy arrangements. Click here to answer Questionnaire No 4 (Surrogacy Agencies).
The Hague Conference on Private International Law is a global inter-governmental organisation with 75 Members (74 countries and the European Union) which works to develop and service international treaties, including in the area of international child protection. The organisation is currently looking into the issues which may arise for children as a result of differing laws in countries concerning who are their legal parents. One area where this has become a particular problem is in the field of international surrogacy arrangements.
The responses to the two online Questionnaires will inform the writing of a report requested by Members of the Hague Conference on the topic of parentage / surrogacy and will facilitate Members’ consideration of whether the development of a new international treaty (i.e. a new Hague Convention) might be desirable and feasible. A new international treaty might include, for example, rules to ensure that the legal parentage of a child, established in one country, is recognised in all other countries which join the treaty. Such a treaty might also facilitate co-operation between countries concerning these matters and might set down minimum safeguards which must be complied with.
These questionnaires provide an important opportunity for those with relevant experience in this field to have their voice heard and to inform future work at the international level.
For more information see www.hcch.net/index_en.php?act=text.display&tid=183.  For further information or word versions of the questionnaires, contact secretariat@hcch.net (Laura Martinez-Mora and Hannah Baker).  If you are not a Health Professional or Surrogacy Agency but have relevant experience in this field to share, please let us know.

Monday, 21 October 2013

Natalie writes for Infertility Network UK magazine: Sperm donors given rights of contact – surely not?

Natalie writes a regular article for the magazine published for UK fertility patients by leading charity Infertility Network UK.  Natalie’s article this quarter discusses sperm donation and the legal rights donors have if they want contact with their genetic offspring.  Read: Sperm donors given rights of contact – surely not?
Infertility Network UK is the UK’s leading national infertility charity, dedicated to supporting everyone affected by infertility and leaders of the National Infertility Awareness Campaign for fair and equitable access to NHS funding for fertility treatment.  You can find out more about the wonderful work I N UK does athttp://www.infertilitynetworkuk.com/ or come and meet them at the Fertility Show, taking place as part of National Infertility Awareness Week 28 October to 3 November.
If you want to know more about lesbian parenting or sperm donation law, there is more information on our website.

Tuesday, 15 October 2013

Richard published in The Review on divorce after assisted conceptio


Richard has written an article published in this month’s The Review on what divorce lawyers need to know about managing relationship breakdown cases for couples who have conceived through fertility treatment or in alternative family structures. You can read the full article here.
At NGA, we deal with many divorce, civil partnership dissolution and relationship breakdown cases and have particular expertise helping non traditional families, including gay and lesbian couples and families conceived through surrogacy, donor conception and fertility treatment. Richard joined our team to support this aspect of our work, and his article explains some of the complexities involved in the cases we deal with. These include civil partnership dissolution for same sex couples, children law issues for parents with donor or surrogacy conceived children, couples who have been through fertility treatment and may have embryos in storage, and untangling the financial issues that arise in these scenarios. These types of cases can be challenging and complex and clients often need specialist advice and value experience of the sensitive issues involved.
The Review is a leading UK journal for family lawyers. It is published by Resolution (formerly the Solicitors Family Law Association), an association of family lawyers committed to handling family law cases in a constructive and non-confrontational way. Richard is a member of Resolution.
If you would like more information about how we can help with relationship breakdown, whether it be civil partnership dissolution, divorce, known donor disputes, or children matters please contact Richard at richard@nataliegmableassociates.com or 0844 357 1602. There is also more information about our relationship breakdown services on our website.

Wednesday, 9 October 2013

Natalie speaks at the Modern Families conference in Jersey

Natalie was delighted to be invited to speak at the Modern Families conference in St Helier, Jersey on Friday 4 October.  A gathering of leading lawyers, practitioners and academics, the conference (organised by the Association of Lawyers for Children and Hanson Renouf advocates, and chaired by His Honour Judge Bellamy) addressed the challenges facing modern families throughout the UK.
The keynote speaker was Mrs Justice Theis, the High Court judge who many of our clients know as the court’s main international surrogacy judge.  Theis J recounted the revolution of judicial thinking on same sex parenting since the 1970s, and talked about the court’s current experience of international surrogacy.  She warned of the ‘ticking time bomb’ of future legal problems for parents who have had a child through surrogacy but not resolved the UK legalities properly.
The one day conference involved leading lawyers, researchers, medics and social work practitioners, and covered a broad range of topics including same sex parenting, surrogacy, adoption and fostering.
Natalie spoke on the subject of ’IVF, surrogacy and donor parenting’, describing what we see happening on the ground with our fertility law work, including divorces involving children conceived through assisted reproduction, same sex parenting disputes and surrogacy.  Natalie spoke out about how UK surrogacy law is currently failing parents, surrogates and children, and desperately needs to be reviewed and updated.

Tuesday, 1 October 2013

New HFEA rules on surrogacy come into force today

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).  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 surrogacyon 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.

Monday, 30 September 2013

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

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.

Thursday, 26 September 2013

Hague Convention to regulate international surrogacy?


The Hague Conference on Private International Law is considering a new global convention on international surrogacy. This follows previous international Hague Conventions regulating inter-country adoption and international child abduction, and marks a response to the blossoming of global surrogacy over the last five years.
To help the Hague with its investigations, experienced surrogacy law practitioners from across the globe (including Natalie Gamble Associates) have been asked to give evidence to give a picture of what is actually happening on the ground, and the problems arising in practice.  Submissions are due by 30 September.
Our experience
Our evidence to the Hague paints an interesting picture of the cross-border surrogacy arrangements being entered into by UK parents (both those living in Britain and abroad).  Over the past four years, we have worked with 227 families in cross-border surrogacy cases, covering children born in 19 different countries to married and unmarried heterosexual parents, same sex parents, and single mums and dads. Most have been commercially arranged gestational surrogacy arrangements (the majority involving donated eggs), but there has also been a significant minority of family arrangements, including some traditional surrogacy cases where the surrogate is the biological mother. The costs for parents have ranged from a few hundred pounds up to hundreds of thousands of dollars. The most popular surrogacy destination countries for UK parents are the USA, India and the Ukraine.  It will be interesting to see how this experience compares with surrogacy lawyers from other countries.
All the international surrogacy cases we have dealt with have involved conflict of law problems, since the very first international surrogacy case in which Ukrainian-born twins were famously declared ‘stateless and parentless’ by the UK High Court in 2008 (because Ukrainian law said our clients were the legal parents, and UK law said the Ukrainian surrogate and her husband were the legal parents).  Since then, we have worked with 45 further families to obtain parental orders to resolve similar problems following international surrogacy arrangements (including our six further published cases which have made new law) with other parents representing themselves and more cases currently in the pipeline.  Parents will be reassured to know that we have not seen any parental order applications refused, or any children ultimately denied entry to the UK.
But five years down the line from that first landmark Ukrainian case, UK families continue to be stuck abroad for a significant period of time after the birth and to face a long and often complex UK court process. Some of the families we have advised have not been eligible to apply for a parental order (or have chosen not to do so) which means they are caring for their children without secure legal status, something which concerns us greatly.
Our view on what the Hague should do
The focus of any international regulation should be to recognise the right people as the legal parents internationally, so that children can be brought home promptly after the birth by the parents who conceived them, and no children are left in an unresolved legal position.
The Hague should also seek to ensure the quality of intermediaries (surrogacy agencies and clinics) to ensure that surrogate mothers and parents are fully informed, protected and supported.  This will create the strongest platform for protecting the welfare of yet-to-be conceived children, and reduce the risk of exploitation of surrogate mothers and intended parents, particularly in third world countries like India.  The issue of payments to surrogate mothers should be considered in the context of ensuring that surrogates give full and informed consent.
Onerous vetting of intended parents should be avoided. Surrogacy is a form of reproduction, and it would be entirely inappropriate to require parents seeking to conceive their own children to follow the procedures used to approve inter-country adopters. Particular care should also be taken to protect the human rights of non-traditional families (such as single and same sex parents). Research evidence shows that it is the quality of parenting which matters for child welfare, rather than the family form, and so any regulation of international surrogacy should be neutral, and should not be used to apply moral positions concerning who should and should not become a parent.
We know from long experience how resolute intended parents are in their longing to have a family.  They are prepared to grapple with significant legal and logistical challenges (and in some countries even criminal restrictions) to conceive through international surrogacy. It is therefore important that any international regulation of surrogacy is pragmatic.  Rather than fruitlessly seeking to curb surrogacy generally, any new convention should instead focus on creating a workable international system for surrogacy which protects all involved, and particularly the children.
What happens next?
The Hague is just in the early stages of gathering information, and it is likely to be years before any new convention comes into force.  However, this is important work and it is critical that those who have real experience of surrogacy get involved and help shape any future regulation as the discussion proceeds.  We will stay closely involved and keep you updated with developments.
In the meantime, the deadline for submissions from legal practitioners is 30 September.  If you are a lawyer with experience in international surrogacy, we would urge you to complete a questionnaire and have your say http://www.hcch.net/limesurvey/index.php/519183/lang-en
There is more information about international surrogacy law on our website, and you can read our publishedinternational surrogacy judgments here.

Monday, 23 September 2013

NGA at the Alternative Parenting Show 2013


Our team had a great day exhibiting at this year’s Alternative Parenting Show on Saturday.  The popular show – which has been running for 3 years – is held in central London and is often a first port of call for parents looking for information about building families in alternative ways.  We were there representing the leading legal work that Natalie Gamble Associates has done for alternative families over many years, on same sex parenting, international surrogacy and fertility law.  It was great to meet so many parents-to-be with questions about their situations, and to catch up with other leaders in the field, including Stonewall, the London Women’s Clinic, PrideAngel, New Family Social, the Donor Conception Network, and the HFEA.
There was also a lot of interest in our new non profit making sister agency Brilliant Beginnings, with a buzz around the hall and discussion in the seminars about the new option for UK intended parents and the changes Brilliant Beginnings is fighting for.  The seminars (on surrogacy, adoption, donor conception and fertility treatment) were also a great source of information for parents planning families, with various NGA legal cases explained.
There was a really great energy – as always – about alternative families of all shapes and sizes.  Every year the APS makes us reflect on how far we have come since we started working in this field, and how positive the landscape now is for everyone who wants to create a family.  Roll on the APS 2014…
You can see more photos on our Facebook page at www.facebook.com/nataliegambleassociates
There is more information about the law for gay dadslesbian mums and single mums and single dads on our website.

Friday, 13 September 2013

NGA hosts House of Commons reception to celebrate the grant of maternity leave rights for surrogacy

Big Ben

We were thrilled to host a reception at the Houses of Parliament on Tuesday evening to celebrate the change to UK law giving parents through surrogacy rights to maternity leave and pay.
NGA co-hosted the reception with John Healey MP, and it was attended by the Minister for Equality Jo Swinson, key UK professionals and influencers, and the parents who have worked with us for so long in different ways to make this change happen.  It was wonderful to see so many children and parents, and a testament to how important this change is for real families.
Natalie, John and the Minister spoke about the landmark Children and Families Bill, which from 2015 will give parents through surrogacy the same rights to time off work to care for their newborn children as other UK parents.  It represents a legal recognition, for the first time, that intended parents are responsible for their children from birth.  We know well that new parents through surrogacy can be in a vulnerable position, whether because they have not been able to have their children in the way they had hoped, or because they are same sex parents anxious about whether their family will be accepted.  That vulnerability is made worse by the lack of parental recognition UK law applies when their children are born.  The change giving maternity rights is therefore a huge step forward, and not just for its practical effect, but for the message it sends.
But there is more to do, and we want to see full legal recognition of surrogacy families, beyond just the right to time off work when their child is born.  Brilliant Beginnings’ surrogacy campaigning was launched publicly at the event, with Natalie advocating the need for further change and explaining what Brilliant Beginnings will be doing to make that happen.  You can read more about our call for change on the Brilliant Beginnings blog.

Tuesday, 10 September 2013

Honesty best policy in divorce and dissolution proceedings

The Telegraph recently reported a divorce case where an agreed financial settlement reached between a husband and wife was set aside. In a rare move, the court decided that the wife had not been provided with the full details from her husband about his financial wealth and the deal reached should therefore be overturned. The case serves as an important reminder of the importance financial disclosure and honesty when dealing with a relationship breakdown.
At NGA we deal with divorces, dissolutions and other relationship breakdowns, working with couples in a range of family structures.  But whatever your family structure, this case shows how criticial it is to be honest in any court proceedings or private agreements, if your relationship has broken down.
It is a long standing principle in divorce and civil partnership dissolution cases that there must be full and frank disclosure of the parties’ financial circumstances. This is essential to reach a fair and appropriate settlement.  Where there has not been full and frank disclosure and this is later discovered, it may be possible for a spouse to apply retrospectively to court to set aside or vary the settlement. This is exactly what happened in this case. Whilst set aside applications are rare they have been granted in circumstances where there has been a failure to disclose the full financial picture.
In this case the husband and wife divorced in 2009 and reached a private settlement. The wife later discovered that her husband had not been truthful about the true extent of his assets with over a million pounds in investments not being declared. Notably, the wife did not have proper legal advice before agreeing to the settlement, and this highlights how having the right legal support from a solicitor can be invaluable in ensuring that any settlement is reasonable.The wife may now be awardedmore money but the full circumstances of the case will need to be considered first, causing delay and uncertainty.
If you are going through your own relationship breakdown and would like more information about how we can help please contact Richard Perrins at Richard@nataliegambleassociates.com contact us on 0844 357 1602 .There is more information about our services here.

Friday, 30 August 2013

NGA launches surrogacy and egg donation agency, Brilliant Beginnings

brilliant beginnings logo

This is a précis of a longer piece Helen and Natalie have written for Bionews, which you can read in full here.
We at Natalie Gamble Associates have been pressing for a better framework for UK surrogacy for some time.  We live in a globalised world in which commercial surrogacy is a reality. If parents cannot build their family in the UK, they will, and do, look abroad to countries (like India, the Ukraine and the USA) which provide commercial surrogacy and egg donation services. There are some exceptional surrogacy support organisations in the UK which operate through the efforts of committed volunteers, such as Surrogacy UK. But UK law restricts proper resourcing for agencies, limits advertising (which in a global market means that foreign agencies overshadow UK providers), prohibits enforceable agreements and defers any legal process until after the child is born.
We are launching a new non-profit making UK surrogacy and egg donation agency, Brilliant Beginnings, which will help create UK families through surrogacy and egg donation, and will reinvest resources into campaigns to promote change and raise awareness.
We have now worked with over 400 families created through donor conception and surrogacy in 30 different countries and we know that parents (and surrogates/egg donors) are often overwhelmed with information and do not know where to start or who to trust.  Our role at Brilliant Beginnings is to help them build families not just legally, ethically and responsibly, but also with the right information from the start and the practical back up.  Surrogacy is a sensitive exercise in human collaboration and those involved need advice, information and support before they go into a surrogacy arrangement.
Brilliant Beginnings will offer ‘first port of call’ advice to intended parents on all the global options, recommending safe existing providers in the UK and abroad, and providing honest information about the risks, costs and implications of international surrogacy. It will also offer professional matching of parents and egg donors/ surrogates in the UK, with practical and emotional support for parents, donors and surrogates throughout, and management of US surrogacy arrangements to help parents work with reputable agencies and professionals and manage all the UK requirements.
We want to raise awareness among women who may be willing to help create families through surrogacy and egg donation, and make the process easier for them, giving their life-changing gift the recognition it deserves.
And we want to improve law and practice.  There have been some positive steps forward in recent years which we have been proud to be involved in – such as the introduction of maternity leave for parents through surrogacy and the review of the HFEA guidance on surrogacy. But there is more to do. We want to see intended parents recognised as legal parents from birth where the surrogate mother consents. We want to see more honesty about the UK’s approach to payments for surrogacy, given that the reality is that the UK does allow commercial surrogacy.  We want to see an end to discrimination against single intended parents. And we want to make a practical difference to the experience of children born into these arrangements on the ground.
Please support us by getting in touch or helping to spread the word.  You can also follow Brilliant Beginnings on Twitter or stay up to date by reading the Brilliant Beginnings blog.

Thursday, 22 August 2013

UK woman conceives with dead husband’s sperm abroad


The press has reported the case of a UK woman who has won permission from the HFEA to have her deceased husband’s sperm exported abroad for IVF treatment after his death.  You can read more about the story here.
How does UK law work on post-death use of sperm?
The rules in the UK are clear – there must be written (and signed) consent from the sperm provider allowing the post death use of his sperm in treatment.  In this case, the man’s sperm was extracted surgically after he was already in a coma he never recovered from.  His wife therefore did not have the written signed consent she needed for treatment to take place in the UK, although she maintained that IVF was always their plan and that Mr H would have wanted her to have a child in these circumstances.
How did Mrs H get permission to use Mr H’s sperm?
In the absence of being able to conceive through IVF in the UK, another option was to export the sperm to another destination where the consent rules were not so stringent.  There is tight regulation of the circumstances in which sperm can be exported, and Mrs H therefore had to seek a ‘special direction’ from the HFEA giving her permission to do it.  She was given that permission and this enabled her to export her husband’s sperm and undergo fertility treatment abroad.  She is currently awaiting pregnancy test results.
Why is this a ‘ground-breaking’ case and did Mrs H break the law?
This case marks the first occasion that the HFEA, under such circumstances, has awarded a ‘special direction’ without the intervention of the court.  Having followed in the footsteps of the well know case of Diane Blood (who successfully won the right, through the Court of Appeal, to export her deceased husband’s sperm abroad – leading to the birth of two children), the HFEA undoubtedly considered the principles of that case and what it said about the need to consider the human rights of all those involved.  The decision over whether to give a special direction is discretionary and something for the HFEA to assess individually in each particular case. Previous cases do not create a formal precedent, but they are influential.
Mrs H therefore did not break the law, having sought permission as the law required her to do, and having been given it.  We congratulate her resolve and wish her the very best in conceiving.
There is more information about the law on the storage and use of gametes here.

Wednesday, 21 August 2013

High Court decision in three new international surrogacy cases


The High Court’s main surrogacy judge, Mrs Justice Theis, has made her decisions in three new international surrogacy cases public, something she only does if she is considering a new issue (to give guidance) or if she wants to draw attention to something which is in the public interest.
The three new decisions all concern foreign commercial surrogacy cases and continue the long trend of the UK court authorising foreign surrogacy arrangements retrospectively. There is no cause for intended parents to be alarmed.
The first two cases – Re PM (2013) and Re C (2013), both US surrogacy cases – deal with the question of payments. The High Court already has a consistent history of ‘authorising’ payments for foreign surrogacy in order to make the child legally a member of his or her UK family, since the very first case (involving a Ukrainian commercial surrogacy arrangement) in which this was done in 2008. However, until now the focus has been on the payments going to the surrogate mother. Theis J has now made it clear that the court also needs to consider what payments have been made to the third party intermediaries who brokered the arrangement (in these two cases, US surrogacy agencies). If these payments include an element of profit for the agency, they will also need the court’s authorisation before a parental order can be made. In practice, this will not affect the likelihood of UK parents being successful in their application (since the welfare of their child will always take priority) but it means that the court will need even more detailed information about the breakdown of payments made for foreign surrogacy before it can reach a final decision.
The third case (AB v DE (2013), also confusingly reported as Re C (2013), in which we represented the parents) is the first Russian surrogacy case to be considered by the UK court. Mrs Justice Theis has published her decision to set out the law and how things are working on the ground in Russia. She also considered some tricky factual issues specific to the particular case. Any parents considering surrogacy in Russia may find the case useful, and lawyers representing them in the UK or in Russia may want to pay heed.
There is more information about international surrogacy on our website.

Thursday, 15 August 2013

NGA quoted in Sunday Times feature on co-parenting


Nicola was quoted in the Sunday Times article this weekend about co-parenting, commenting on the legal issues for parents considering conceiving with someone they are not in a relationship with.  The weekend piece focused on a single woman, Charlotte, and her hope to start a family with a like-minded man.  Charlotte explains how, at 41, she feels her time is running out to have a baby and that she alone cannot afford to raise a child.  She is looking for a man she is not in a romantic relationship with, who will share parenting care, financial responsibility and decision making with her.
Nicola was asked to comment on our experience as legal experts in co-parenting, and what Charlotte – and others like her – should think about before going into such an arrangement.  She said:  “We have seen a lot of success stories since we started providing co-parenting agreements.  We advise people to think carefully about things like where everyone will live, what each person’s role is, how they will be known to the child and to others, and how the financial responsibility is to be shared.”
At NGA, we have seen co-parenting become a much more mainstream family building option for both single people and same sex couples over the past few years.  There are websites, including Pride Angel, designed specifically as a forum for hopeful co-parents to meet and discuss their parenting plans.  Some arrangements work incredibly well, but some do break down, and where they do this is often because there were mismatched expectations at the outset.
The key to ensuring a successful match and future arrangement is to have detailed discussions at the outset about the legal position and role of every individual (bearing in mind particularly that these arrangements often involve more than two parents – a situation the law is not adequately set up to cater for).  The preparation of agreements confirming everyone’s intentions (even if they are not legally binding) is often a very helpful tool in setting solid foundations and ensuring that everyone is in harmony before a child is conceived.
You can read the Sunday Times article in full here.  There is more information on the legal aspects of co-parenting on our website.  If you would like advice or to put an agreement in place, do get in touch

Tuesday, 13 August 2013

Equal Marriage (of sorts) - Gay Marriage becomes legal in England and Wales


Following our blog earlier in the year where we reported on the progress of the Marriage (Same Sex Couples) Bill we are delighted that the Bill has now received royal assent. After much debate and somewhat of a furore, this means that same sex marriage is now law, even though the first UK same sex marriages won’t take place until Spring 2014 once all the procedures and paperwork have been put in place.
Perhaps unsurprisingly there is some confusion around what the changes in the law actually mean. The key points to note are as follows:
1. It will be legal for couples of the same sex to marry in England in Wales.
2. Same sex couples can have a civil or religious wedding, but can only have a religious wedding if the relevant religious group decides to ‘opt in’ (which every religious group except the Church of England can do).
3. Civil partnership will remain an option for same sex, but not heterosexual, couples. (The legal differences between marriage and civil partnership are minimal in practice).
4. Same sex couples already in a civil partnership can convert their civil partnership into a marriage if it was registered in England and Wales. This will not apply to couples who registered a civil partnership in Northern Ireland, Scotland or abroad (who will not be able to marry unless they dissolve their civil partnership first).
5. For those splitting up, adultery is not a ground for dissolving a civil partnership and is only a ground for dissolving a same sex marriage if the adultery takes place with a member of the opposite sex (although in practice unreasonable behaviour usually gives grounds for dissolving a relationship where there has been infidelity anyway).
6. There is no international harmonisation of how or if a same sex marriage will be recognised in other countries. However, it is likely that a same sex marriage will be recognised in countries where same sex marriage is legal (such as France which has recently undergone similar changes).
The change in the law is certainly welcomed by us at NGA but the rules are undoubtedly complex. There has already been controversy over the decision to allow religious groups to opt in but this doesn’t apply to the Church of England. It seems an awkward concept that same sex couples are to be able to enter into a civil partnership but for there to be no option for heterosexual couples to do likewise.
There will be complex questions from couples in England and Wales who have married or registered a civil partnership abroad as to how their relationship will be recognised in England and Wales. Similarly, relocating couples will need to know whether their marriage will be recognised abroad. This will impact on issues such as tax planning or the breakdown of the relationship.
Much like with our campaigning work for a global harmonisation of surrogacy laws we feel that a more universal approach to same sex marriage is needed, but this is herculean task at a global level. In the meantime, UK same sex marriage is a huge step in the right direction.
Here at NGA we specialise in helping alternative families and have a strong background in cases involving the breakdown of relationships. We help with civil partnership dissolution, divorce and disputes relating to children and financial matters. We also help with pre registration and pre nuptial agreements to give clarity and prevent disputes in the future. If you would like to discuss your circumstances with us please contact Richard Perrins for more information.
Family Disputes Pre Nuptial Agreements Divorce and Civil Partnership Dissolution Financial matters

Tuesday, 6 August 2013

Yotam Ottolenghi on becoming a gay dad through surrogacy

Hoorah for NGA client Yotam Ottolenghi and his wonderfully heartfelt piece in Saturday’s Guardian:  Why I’m coming out as a gay father.
In a brave and personal editorial, the renowned TV chef and restarauter has spoken out about his long journey to fatherhood as a gay man, and how becoming a father has enabled him to reconcile himself to a new openness about his sexuality.  He says:
“At the end of a five-year process, I know we can’t be shy about telling our story, that privacy just isn’t an option. That’s because we could only have had Max, and hopefully also a future sibling, thanks to other people who have shared their stories. Max has already brought us immense joy. He has also forced our second coming out, this time as gay parents.”
We salute his bravery in coming out to the world about such incredibly personal issues.  We have been privileged to share his journey (as his legal advisors), which has taken him through the option of co-parenting to international surrogacy and the birth of his son Max earlier this year.  We know it takes brave men like Yotam willing to talk about their experience to inspire others that it can be done, and to enable them to feel comfortable about their choices.
The good news, from a legal perspective, is that the options for gay men to become fathers have never been better than they are now.
Since 2010, gay men who conceive with a surrogate mother have been able to apply to the family court for a parental order.  This ultimately gives them a UK birth certificate naming them both as parents.  It is a legal solution for gay dads who conceive through surrogacy in the UK and abroad, and it fully resolves all the UK legal issues.  Surrogacy in the UK is often more achievable than people realise, but many gay dads, like Yotam, are also going to the US where a more professional and managed surrogacy service is available.  There has developed a significant track record over the past five years of the UK High Court authorising such arrangements (even though they involve commercial surrogacy arrangements), case law which we have been proud to have helped shape.
Since 2005, gay men have been able to adopt as couples, with just the same rights as heterosexual couples.  They have full and equal parental status and an adoption certificate to confirm it.
And there is the option of co-parenting.  Here the law is more complex, and in particular gay couples  who donate sperm to lesbian couples may have no legal status as parents if the birth mother is in a civil partnership.  But these arrangements work too, and there are legal solutions available.
The climate has never been better for gay dads to start a family than it is now, and we hope that other gay men will draw courage from Yotam’s story.
There is more information on surrogacy for gay dads, co-parenting and adoption on our website.

Friday, 2 August 2013

Website sperm donor liable for child support after court rules that conception was not artificial


A UK man who donated sperm to a married woman he met via a sperm donor website has been ordered to pay child support.  The pair met via a website advertising sperm donors and started trying to conceive artificially, before they began an affair.  The High Court heard evidence from both sides and rejected the man’s evidence that the couple only started having sex after the child was conceived, finding that the child was conceived through ‘natural insemination’ – in other words sexual intercourse – rather than through artificial insemination.
This meant that the donor was not legally a sperm donor, and so like any other biological father was liable to pay child support.  In a rare move for a children case, he was also ordered to pay all the legal costs of the woman’s husband and three quarter’s of the woman’s legal costs, since the court decided he had not told the truth.
What makes a legal sperm donor?
Men who agree to donate their sperm are not protected from financial responsibilities just because they agree this with the birth mother or describe themselves as a donor.  They are only sheltered from financial claims if they:
1) donate via a UK licensed clinic, or
2) donate by artificial insemination to a married or civilly partnered couple, with the consent of both partners.
In this case, the birth mother was married.  Had the court decided that conception took place by artificial insemination, it would next have had to determine whether the birth mother’s husband consented (and if so he, rather than the sperm donor, would have been the child’s legal father).  However, given that conception occurred through intercourse, there was no need to go to the next step, and the sperm donor was financially responsible.
Lessons for other sperm donors
The case shows the risks of conceiving through donation outside the framework of regulated treatment at clinics.  It’s been an expensive lesson for the donor in this case.  Other men considering donating via websites should be clear about how the law works, and whether their plans might put them on the hook financially.  If they donate via ‘NI’ they can forget any legal protection whatsoever.
There is more information about known sperm donation on our website.  You can read the judgment in this case in full here.