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.

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.

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 dads, lesbian mums and single mums and single dads on our website.

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

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.

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.