All time high for lesbian couples conceiving in UK.

HFEA reports all time high for lesbian couples conceiving at UK fertility clinics.

http://www.nataliegambleassociates.co.uk/blog/2014/03/30/hfea-reports-all-time-high-for-lesbian-couples-conceiving-at-uk-fertilitty-clinics/ …

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.

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.

HFEA to update surrogacy guidance to UK clinics

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

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

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

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

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

International surrogacy - UK High Court judge parenthood to non-British dads

The decision in Re A & B (Parental Order: Domicile) represents another landmark ruling for NGA – a parental order having been granted to a non-British gay couple following the birth of their son through Indian surrogacy last year.

The case not only clarifies the law for foreign but UK-resident parents conceiving through surrogacy, but also shows how same sex parents are being drawn to the UK’s open culture and law. We were proud to have supported the parents in this case through to successful conclusion, and once again to have helped make new law.

What happened?
The parents, who are American and Polish respectively, moved to the UK as a couple in 2008 (having registered their domestic partnership in California four years earlier). They were initially attracted to the UK by our unrivalled equal laws and gay rights – something they were not afforded in their respective home counties. Having decided to start a family, they found a surrogate through an agency in India and were delighted when their son was born in 2012. On their return to the UK they sought help from NGA to establish the non-biological dad’s parental status, which led to their application for a parental order (the legal solution following surrogacy, enabling both intended parents to become their child’s legal parents under UK law).

What does the law say?
In order to be eligible for a parental order, at least one of the intended parents must demonstrate to the court’s satisfaction that they are ‘domiciled’ in a part of the UK. Domicile for these purposes is more complex than simply where a person lives – it comes down to where their permanent roots and allegiances lie. This particular criterion (one of a number of strict requirements attached to the parental order) is designed to prevent foreign parents ‘forum shopping’, by using the UK court to grant them a more favourable legal solution than their own country might. The parents in this case therefore had to show that they had made the UK their permanent home and that, notwithstanding their American and Polish citizenship status, they had cut their ties with the US and Poland and did not intend to return.

What did the court consider?
In order to establish whether the parents in this case had met this high bar, the judge considered a number of factors in detail. She was particularly assisted by the parents’ statements, which outlined in detail their connections here (including that they ran a UK based company and both intended to apply for British citizenship at the earliest opportunity) and their affection for the UK including their very personal reasons for making it their home and the place that they raise their family, away from the discrimination abundant in their home countries. The judge went on to quote one of their reasons for not returning to the US, “We will never return and raise our son in a society in which schools may censor him from talking about his family”, as a factor which bolstered their contentions.

Why is this case significant?
Mrs Justice Theis reiterated in this case the importance, for non-British parents applying for a parental order, of demonstrating a clear intention to make the UK their permanent home – the court otherwise being powerless to make a parental order. The judge was also assisted by an independent investigation of the circumstances surrounding domicile by CAFCASS Legal, who found that the parents had abandoned their respective domicile of origins in favour of English domiciles of choice. This case (in addition to Z v C [2011]) provides helpful guidance for future non-British parents through surrogacy who hope to apply for a parental order.

What you need to know if you are not British, or are British and based abroad, and considering applying for a parental order
Domicile is a far-reaching principle of law and far from contingent on just one factor. Having dealt with the key cases which have tested the law on this, we would be happy to advise you on your eligibility to apply for a parental order, no matter what your circumstances. You can contact us here, or alternatively there is more information about domicile on our website.