UK surrogacy law in summary

Excellent summary of UK surrogacy law by Bianca Jackson at Coram Chambers http://www.familylawweek.co.uk/site.aspx?i=ed127234 …

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.

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.

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.

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.

Natalie speaks at leading conference, with Supreme Court justice Baroness Hale

Natalie was delighted to speak alongside Baroness Hale at a leading conference in London on 20-21 June hosted by academics at the Morgan Centre and gathering leading UK and international experts in donor conception and alternative reproduction.

Baroness Hale of Richmond (first woman Justice of the Supreme Court, and former chair of the committee which drafted the very first HFEA Code of Practice in 1990) gave the conference opening address, speaking about the law for ‘new families’ and how the family courts have sought to uphold the welfare of the child in a range of cases involving donor conception, lesbian parenting and surrogacy.

Natalie, invited to give the response to Lady Hale’s address, shared her practical perspective of the issues affecting non-traditional families on the ground.  She talked about the deficiencies of current UK law on surrogacy, and how important the new legal rights are for same sex parents.  She discussed how complex and divisive known donor disputes can be, and how in practice unequal biological or legal parentage between separating parents can raise temperatures significantly.  But she also noted that many parents conceiving in non-traditional ways do so with enormous care and planning, and stressed that the success stories should be remembered as well as the difficult cases which come to court.

A range of eminent speakers on sociological, international and practical aspects of donor conception then addressed the conference, including leading academics from Manchester and Cambridge University, experienced practitioners at fertility clinics, experts in bioethics and international lawyers from Scandinavia (with Denmark being one of the world’s leading suppliers of donor sperm).  Professor Carol Smart and Dr Petra Nordqvist, who hosted the conference, presented the results of their fascinating research project on donor conception, which has explored the feelings of parents and grandparents in different family forms about the implications of having conceived a child with the help of a donor.

You can read Natalie’s response to Baroness Hale here, or find out more about our campaigning work.  You can also find out more about the Morgan Centre’s research: Relative strangers – a key new study of information sharing and senses of connectedness in donor conceived families.

Surrogacy overseas: new immigration guidance for UK parents

The Foreign and Commonwealth Office has published updated guidance on the immigration procedures for UK parents who have children born through surrogacy abroad.  The rules have not been changed, but they are now set out much more clearly than before.  The new guidance also contains helpful practical information about what documents need to be included in applications.

If a child is born through surrogacy abroad, UK law applies its own rules on parentage irrespective of the legal position in the birth country.  The rules trip up many parents since, even if their child’s foreign birth certificate or court order records them as the legal parents, the child will not automatically be entitled to a British passport.  British nationality law treats the surrogate (and if she is married her husband) as the legal parents – irrespective of biology.  The child may therefore inherit British nationality from his or her parents, but may not, depending on the circumstances.  If the child is not British, there are discretionary procedures to follow to get the documentation needed to bring the child into the UK (to have the child registered as a British citizen, or to obtain an entry clearance visa).  The new guidance sets out these procedures much more clearly.

These rules apply to children born through surrogacy anywhere in the world, most commonly India, the Ukraine and the USA.  Typically the fastest route home to the UK is from the USA (although to avoid breaching immigration control parents need more than a US passport to travel).

There is more information about international surrogacy law on our website, or you can contact us for advice on your personal situation.  We are the UK’s most experienced surrogacy lawyers, having dealt with virtually all the international surrogacy cases which have made the law in the UK, including the very first.  We have also long campaigned for better immigration laws for surrogacy, helping create the policy which has allowed entry clearance to be given on a discretionary basis, and in 2010 winning a change to the legislation which allows British nationality to be conferred automatically on children awarded a parental order.

High Court judge warns 'loud and clear': international parents need a UK court order

In a High Court ruling published today, Mrs Justice Theis has issued a public warning to parents of children born through international surrogacy that they must apply to court in the UK.

She said: “The legal relationship between children born as a result of surrogacy arrangements and their intended parents is not on a secure legal footing without [a UK parental order] being made. That can have long term legal consequences for the children… The message needs to go out loud and clear to encourage parental order applications to be made in respect of children born as a result of international surrogacy agreements, and for them to be made promptly.”

Mrs Justice Theis was granting parenthood to a gay couple (civil partners) who had conceived twins through surrogacy in California. She said: “I am entirely satisfied the applicants have acted in good faith at all stages. Their journey to have a family has clearly been a long and arduous one, both emotionally and financially. They are a loving and committed same sex couple with a stable home environment.”

The judge published her decision to send a message that British parents through surrogacy must, like this couple, deal with UK law properly. As we well know at NGA, increasing numbers of prospective parents are travelling to places like California where professional surrogacy agencies manage the process (unlike in the UK, where it is a criminal offence for third parties to broker surrogacy arrangements for profit). California offers legally binding surrogacy contracts and a birth certificate naming the intended parents. But UK law does not recognise Californian law, instead treating the surrogate and her husband as the parents no matter what the US birth certificate says. The British parents then need a parental order from the UK family court to become the legal parents in the UK.

Without it, they have no right to make decisions as parents and may be caring for their child illegally. Their child may lack basic legal rights to inheritance, child support and British nationality. If the parents do not apply to court within six months of the birth, they lose the chance of getting a UK birth certificate forever. It is not known how many UK parents may already be in this position.

In this case, the parents had followed UK legal procedures properly and the court made a parental order in their favour. The surrogate – in accordance with Californian law – had been paid $56,750 plus expenses. Payments for surrogacy are not illegal under UK law, but if more than ‘reasonable expenses’ is paid the court has to weigh things up carefully before making a parental order. This is not the first time the High Court has ‘authorised’ a commercial payment to a foreign surrogate, although the amount in this case was larger than in any previous case. It is lawful to pay a surrogate an inconvenience fee in California. Payments are usually lower ($25,000 to $30,000 being typical) which is in practice often not much more than the £10,000 to £15,000 commonly paid to UK surrogates. As the judge explained, the payment in this case was exceptional because the parents, following a difficult fertility journey, had selected an experienced surrogate. She subsequently carried twins and gave birth by caesarean. The judge, having assessed the facts carefully, was satisfied that the surrogate was a “mature woman with financial means. She had legal advice before entering into the agreement and was able to command a higher compensation fee because of her proven track record”. Making an order was therefore not an affront to public policy and was justified because it ensured the children’s lifelong security.

Natalie Gamble, solicitor for the parents, comments: “Surrogacy law in the UK desperately needs to be updated to deal with the realities of the global fertility market. Our current law was written more than 20 years ago before any of these scenarios were dreamt of, and there is no logical fit between the law here and the law abroad. It is easy for parents to overlook the need to deal with UK law as well as US law, and if they do, the legal status of their children may be permanently compromised. The court is rightly very worried about that. All parents planning international surrogacy arrangements need the right information about the law, and they need it in time.”

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. 

Natalie on the Today Programme – who should have the rights where a surrogate baby is disabled?

Natalie was interviewed by James Naughtie on this morning’s BBC Radio 4 Today Programme about surrogacy. The programme covered a US surrogacy case which hit the news after a US surrogate mother refused to terminate her pregnancy at 21 weeks when it was discovered that the baby would be born severely disabled.

In the UK, surrogacy law gives all the rights to the woman who carries the pregnancy – she is the legal mother. Although a case like this has never happened in the UK, if it did there would be no doubt (as there was under US law) that the surrogate mother would hold all the cards. But is this the right approach?

In practice, we know on the ground that surrogacy disputes are incredibly rare. For the vast majority of cases, it would make more sense for the intended (biological) parents, rather than the surrogate, to have legal responsibilities much earlier – it’s what everyone involved wants, and the long delay transferring parenthood leaves children vulnerable for far too long. And where there are disputes, we need a more sophisticated approach to balancing the interests of all involved – surrogate, parents and child.

The real lesson of this case is that we can avoid problems like this by giving the right support at the start. Parents and surrogates need to communicate clearly, and those with radically mismatched views on termination should not proceed together. That is why it is so crazy that UK surrogacy law goes out of its way to deny those going into surrogacy arrangements the support they need. Under UK law, surrogacy contracts are unenforceable and illegal for lawyers to draft, and professional matching and brokering services are prohibited by criminal law. It’s time for that to change.

There is more information about surrogacy law and our campaigning work on our website.