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.

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.

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.

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.

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.