NGA launches surrogacy and egg donation agency, Brilliant Beginnings

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.

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.

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.

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

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

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.

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.