Government urges caution with foreign surrogacy arrangements

From @marilynstowe's blog

http://www.marilynstowe.co.uk/2014/02/12/government-urges-caution-with-foreign-surrogacy-arrangements/ …

Foreign Office issues new guidance on international surrogacy

http://www.nataliegambleassociates.co.uk/blog/2014/02/11/new-foreign-office-guidance-for-parents-planning-international-surrogacy/ …

High Court rules in favour of parents through surrogacy, despite irregularities in the US

High Court rules in favour of parents through surrogacy, despite irregularities in the US http://www.nataliegambleassociates.co.uk/blog/2013/11/28/high-court-rules-in-favour-of-parents-through-surrogacy-despite-irregularities-in-the-us/ …

UK parents expecting four 'twiblings' through surrogacy in India

The BBC has reported a surrogacy case (‘The couple having four babies through two surrogates’) involving a British couple who are anticipating the birth of four babies through surrogacy - two sets of twins being carried simultaneously by two Indian surrogate mothers.  Natalie was interviewed for the piece, by Poonam Taneja, and comments on our experience on the ground and what these arrangements are being called:

“Lawyer Natalie Gamble confirms there are similar cases but she believes it is a trend which is largely unique to the sub-continent. “We’ve seen it a few times. I wouldn’t say it’s routine but it’s not massively uncommon in India,” she says. In fact there is even a new term coined for these babies – twiblings. “They’re not quite twins and not quite siblings either,” she says.

It is indeed not the first time we have seen twiblings result from surrogacy in India - the use of more than one surrogate at the same time is an option presented to many of our clients going to India.  Embryos are created (either using the couple’s own gametes, or with the help of a donor) and then transferred into several surrogate mothers at the same time with a view to maximising the chance of a successful pregnancy.  If both surrogates get pregnant, the babies may be born at slightly different times, even though they were conceived as twins.

We understand that parents who have had long and difficult journeys are desperate to achieve a pregnancy, and that many do think through carefully the consequences of having many children at once.  But where multiple embryos are transferred, there can be significant risks involved for the parents, the babies and the surrogate mothers, and those involved may not be given enough information about the risks before they make a decision about how to proceed.  Indian surrogate twiblings is the product of an unregulated system and a world away from the strictly controlled fertility treatment which takes place under HFEA regulation in the UK, where there are strict controls on how many embryos can be transferred in order to avoid multiple pregnancies, and rigorous measures in place to make sure everyone involved gets the right information and gives full informed consent.  It is something parents should bear in mind before they embark on surrogacy in India.

There is more information on our website about international surrogacy law and immigration.

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.

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.

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.

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.

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.”

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.