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.

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.

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.