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President of the High Court Family Division endorses international surrogacy

December 13th, 2011

Sir Nicholas Wall, the President of the High Court Family Division, has made public his decision to give parenthood to the British parents of twins born through surrogacy in India.  The President said the issues were of “considerable public importance” and he wished to endorse the previous judgments of Mr Justice Hedley in other similar cases.

The decision, from one of the UK’s most senior family judges, represents a bolstering of the UK court’s position on international surrogacy:  that although commercially organised surrogacy is not yet permitted in the UK, British parents can be awarded parenthood if they go abroad and pay a foreign surrogate mother more than her ‘reasonable expenses’.  Sir Nicholas Wall made clear that the court’s paramount consideration is the child’s welfare, and that a birth certificate will be given as long as there has been no exploitation and the parents are not circumventing child protection laws in the UK.

In this particular case, two Indian surrogate mothers (carrying embryos created with the intended father’s sperm and eggs from the same anonymous donor) gave birth to a boy and a girl within a few days of each other, following a surrogacy arrangement commissioned by a British couple.  A total of some £27,000 was paid to the Indian clinic.  The court was ultimately satisfied that the parents were “entirely genuine and straightforward” and that “it is plainly in the interests of these two children that they should brought up by Mr and Mrs A as their parents”.

The case follows similar decisions by Mr Justice Hedley in the cases of Re X and Y (2008) in which British parents paid £23,000 to a Ukrainian surrogate mother, Re S (2009) involving a Californian surrogacy arrangement, Re L (2010) involving a surrogate mother based in Illinois and Re IJ (2011) involving a Ukrainian surrogacy.

For further information you can read the judgment in full or see our international surrogacy law pages.

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Posted in family building, fertility law, gay men surrogacy, international surrogacy, Natalie Gamble Associates news, same sex parenting, Uncategorized | Comments Off

Parents to baby Hope talk to the Independent about why they chose US surrogacy

November 15th, 2011

Today’s Independent features a piece by Alice Jolly, mother to daughter Hope who was born through a surrogacy arrangement in the US, and who we are proud to be working with.  Well done to Alice for her bravery in speaking out to highlight her experience.  As she says so compellingly, she and husband Stephen are by no means the only parents who have come to us having decided that the adoption process in the UK is just too long, hard and uncertain.  Alice describes their experience of US surrogacy and how it has enabled them to build their family in another way.  With aptly named Hope in arms they are, she says, “the luckiest people in the world”.

Here is Alice’s article in full, which you can also read at the Independent online

Surrogacy: Parenting the hard way

Alice Jolly and her husband knew they could offer a loving home to one of the thousands of British children awaiting adoption. So why were they forced to go abroad instead and use a surrogate to get the child they longed for?

Tuesday 15 November 2011

Alice Jolly with her husband, Stephen, and their children, Thomas and Hope
JOHN LAWRENCE
 

The scene: a church hall in Oxford three years ago. My husband, Stephen, and I are attending a seminar for couples who want to adopt. A social worker stands beside a whiteboard and explains the process. I look around at the other couples. Their eyes are blank, puzzled. Some start to yawn while others scratch their heads. The social worker has become a tic tac man at a race course, frantically waving her arms, speaking a language that no-one understands. We all start to stare at our shoes. It’s becoming embarrassing – what are we doing here and who put these people in charge of something so important?

A man in the audience is trying to raise his hand but his wife keeps pulling his arm back down. He refuses to be silenced. “So any 16-year-old girl can go into an alleyway on Saturday night,” he says, “and have a knee-trembler with a bloke whose name she doesn’t know, and no one is ever going to ask about her suitability for motherhood. But I’m going to have to go through all this just to be a father?”

The room is silent. The man’s wife is tearful. A social worker crouching in the corner makes a note in her black book. We all know that this couple have fallen at the first hurdle. And yet he has only said what everyone in the room is thinking.

As we have a six-year-old son, Stephen and I decide that it might be best for us to adopt a child under two. No children under two are available for adoption in the UK – or at least none are under two by the time they emerge from our adoption system. And so we go to a seminar in North London about overseas adoption. There we are made to play a bizarre board game. Adoption Monopoly? Or is it Snakes and Ladders – but without any ladders? Each couple has a marker to move around the board. Cards are drawn from a pack. They say, “your paper work has been lost, go back three months.” Or, “the country you have chosen is now closed for adoption, go back to square one.”

Finally, it comes to our turn. “So, Stephen and Alice, where are you up to now?”

“Well, I’ve just retired,” Stephen says, pretending to read the card.

No one dares laugh or it’ll be back to the beginning for them. We break for a coffee and chat to other people. One couple can’t currently be considered for adoption because, although they are home owners and employed, they have £5,000 of credit card debt. Another couple used to live in Bedfordshire, and they got two years into the adoption process, but then they moved to Berkshire so they had to begin again.

After coffee, the discussion focuses on the difficulties experienced by adopted children. Two men interrupt – one is black, the other of Asian origin. Both of them were themselves adopted. The lady running the seminar is clearly uncomfortable with real-life multi-cultural adoption stories. But she presses them to express the anger they must surely feel towards their adoptive parents.

“Anger? I was in an orphanage in Thailand and my Mum and Dad adopted me, brought me back here, gave me everything. From an early age I wanted to be a musician and they made that possible. How could I possibly be angry?”

Then the black guy says: “I was adopted from Ghana and for me it was certainly traumatic. Because every year my adoptive family in Hampstead wanted to celebrate Ghanaian National Day. So all my flabby, white relatives dressed up in African costumes and played drums. Man, I’ve been on the pyschiatrist’s couch for years…” Doubtless the names of these two have gone into the black book as well.

A one-to-one meeting with a social worker follows. It’s a scene from The Trial, by Kafka. We have to convince her we want a child, but we must not appear to want one too much. We tell our story: a stillbirth, four miscarriages, failed IVF. The social worker thinks we have too much baggage – but surely the truth is that most people who adopt do so because other plans have failed?

I mention that we’ve been told that adopting from Russia will probably take two years. No, she says. It will take four and most of the Russian babies have foetal alcohol syndrome. I have talked to a number of families who have adopted from Russia and they tell a different story – but I can’t say so. And so it goes on. No and no and no. We are guilty until proven innocent. Everything is a problem – the fact that we’ve lived abroad, that we have an existing child, that we both went to boarding school, that once every two months Stephen might smoke a cigarette in a bar.

But strangely, the biggest problem is that we are about to have building work done in our house. Until that work has finished, we can’t even start the process.

As we drive home, Stephen is fuming and I am in tears. I know the social worker is playing games, trying to find out if we are serious. But could she not have offered some support or encouragement? I know that adoption isn’t easy – and that it shouldn’t be easy. But does it have to be negative, intrusive, judgemental and so painfully inefficient? Would they rather leave 100 children in care than relax their impossible demands for perfection?

Six months later we meet a lawyer who specialises in gestational surrogacy in the US. Nearly everyone who crosses her threshold has tried to adopt and given up. And US surrogacy? Well, it’s expensive and legally complex – but it can be done. We get in touch with agencies in the States. Yes, they say. Yes and yes and yes.

But I am unconvinced. To me, surrogacy seems bizarre and extreme. It’s from the world of lawsuits and reality TV shows. But then I talk to people with real experience of surrogacy and uncover a world that couldn’t be more different from those sensational media stories. A world in which women are genuinely trying to help other women overcome the pain of infertility.

Two weeks ago we came back from America with our baby daughter. She is called Hope. We are the luckiest people in the world. Throughout the whole process, I continued to doubt whether surrogacy can really work well for everyone involved – now I know that it can. But still I am left with questions about why we couldn’t have given a home to an existing child instead of creating a new one. And some part of me will always be haunted by that baby who we might have adopted – and who is probably still waiting for a family and a home.

Proceeds from this article have been donated to SANDS (Stillbirth and Neonatal Death Society) uk-sands.org

 

 

There is more information about international surrogacy law on our website

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ABA Conference in Las Vegas brings together fertility lawyers from across the globe

October 31st, 2011

Natalie and Helen were delighted to attend the American Bar Association’s Family and Assisted Reproductive Technologies (ART) conference in Las Vegas (26-29 October 2011).  The conference brought together the world’s leading experts in assisted reproduction and surrogacy law, with lawyers from many US states (where laws vary enormously), Germany, Italy, Canada, Australia, the Ukraine, India, Brazil and Greece.  Natalie was invited to speak about English law at a packed session, and was proud to represent the UK alongside leading fertility law experts from Germany, Italy, Australia and Canada.

The ABA conference comes at a key time, with the Hague Conference putting surrogacy on its agenda for international regulation, as well as increasing numbers of clients crossing borders for surrogacy and ART.  We were thrilled to meet so many professionals who, like us, understand and care passionately about helping people build families successfully.  It was abundantly clear that surrogacy lawyers across the globe need to play a key role, both in helping parents get the best legal protection and recognition possible (while national laws are so disastrously mismatched), and in advocating more widely at an international level as a voice for those conceiving in alternative ways.

Thank you to the American Bar Association for hosting such an inspiring international conference, which we know will be just the first step in building a strong international community of advocates for alternative families.

More information about international surrogacy law is available on our website and in particular check out our area for non-UK advisors and US attorneys.

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An interesting perspective on the HFEA’s decision from the USA

October 21st, 2011

We thought some of you may be interested in this response to the HFEA’s decision from Julie Shapiro in the USA, who writes an excellent blog on assisted reproduction law at http://julieshapiro.wordpress.com/

And The Right Price Is……..$1200

My last post was triggered in part by the then-impending announcement by the HFEA of adjustments to the monies provided to those who provide gametes in the UK.   Yesterday’s Guardian reports the result of the HFEA’s deliberations:  Egg donors will now receive compensation in the amount of 750 pounds (which is about $1200.)

It’s interesting to think about what the HFEA was trying to do here and it seems to me that the way it’s talked about is fundamentally different from how I’ve been thinking about it.   I’ve been talking about simple economics–if you offer more money, you get more sellers.   Here the government is fixing a price and trying to strike the right price to increase supply adequately.   The alternative–which exists in the US–is largely unregulated market where the ordinary laws of supply and demand set prices.

But the HFEA (and others quoted in the argument) see this quite differently.  They talk about trying to balance between altruism (which is the right reason to provide gametes) and more base motives–like financial greed or need.   From this perspective, you don’t want to offer too much money or you’ll get people acting for the wrong reason.  But you don’t want to deter the altruistic, since there are real hardships to providing gametes.   Consider this quote:

Professor Lisa Jardine, the HFEA’s chairman, denied that the £750 payment would induce people to donate eggs purely for money. “I find it very hard to see the £750 as an inducement,” she said. “I think it is a fair reflection of the effort and the time and the discomfort and the pain of some of it. I can’t see any room there for inducement.”

The concern about motives morphs into something slightly different later in the article:

Clare Lewis-Jones, chief executive of Infertility Network UK, said: “We hope that today’s announcement to increase the payment to donors will help encourage more people to become donors. The balance between coercing people to donate by offering large sums of money, and paying enough to ensure donors are compensated for their expenses and the wonderful gift they are giving is a fine one.”

The concern raised here–coercion–is one that resurfaces in other quotes.

Laura Witjens, chair of the National Gamete Donation Trust (NGDT), said: “No amount of money will ever repay what an egg donor does to help childless couples. This priceless gift changes lives and donors truly do it to help others. The NGDT believes that altruistic motives should remain at the core of donation and that payment, although intended as an expression of gratitude, should never facilitate coercion.

Now it seems to me that everyone agrees that altruism is good and is what they want to encourage.   But the countervailing concern seems to shift from bad motives (doing it for the money) to coercion and ”coercion” seems an odd concept here.  Frankly, offering a lot of money for something doesn’t fit my general idea of coercion.   But I suppose the connection is that if you offer a lot of money and if women need money, then women will be compelled to take the offered money.     Thus, economic need is the instrument by which coercion becomes effective.  I think this rather strains the meaning of the language.

Apart from this, there’s a problem with the HFEA thinking.   Most of what I’ve read suggests that most women who become gamete donors–like most women who become surrogates–do so for mixed motives.   It’s pretty rare to see the wealthy in either group–which suggests that people who do not need money choose not to do these things.  But the women who provide eggs or become surrogates do seem (generally speaking) to be motivated in part by altruism as well as by an interest in the compensation.

This suggests to me that the HFEA’s careful balancing is based on a false assumption–that one acts for altruism or one acts for money but not for both.  If most women have mixed motivations then what becomes of the balancing?  When motivations are mixed no line can be drawn between altruism and financial need/desire.   And there’s no way of measuring whether you’ve done it right.  In time we will be able to tell how much the increased compensation affects the supply of eggs, but I’m not sure we’ll ever be able to tell

http://julieshapiro.wordpress.com/

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HFEA shift on donor payments will make little difference

October 20th, 2011

The HFEA announced yesterday that, after an extensive public consultation and review, the system for paying egg and sperm donors in the UK is changing.  Instead of donors being paid out of pocket expenses plus an allowance for loss of earnings of up to £250, egg donors will now be paid a blanket £750 per cycle, and sperm donors £35 per visit.

There was much discussion yesterday about the new payment to egg donors of £750 and whether this would encourage women to donate eggs for the money who wouldn’t otherwise have done so.

However, if we understand the HFEA’s press release correctly, this seems to be a bit of a misunderstanding.  The new figure of £750 does not seem to be an increase on the existing £250 cap, but rather a change of how the system works.  Women used to be able to claim their actual (unlimited) out of pocket expenses plus an allowance of £250 to represent (nominally) loss of earnings.  They can now claim £750 to cover everything, no matter what their actual expenses are.  In practice we know that expenses during an egg donation process can mount up very quickly, covering things like travel, drugs, the cost of scans and blood tests at a local hospital, childcare and time off work for consultations, counselling, scans and egg collection.  It’s not an easy or an inexpensive process.  The HFEA’s new rule therefore may not mean more money for donors, just a simpler way of dealing with expenses.  We think the change is less significant than it sounds, and will make little difference to donors or recipients in practice.

However, if nothing else, we hope that all this discussion about donation in the media will encourage donors to come forward.  Working with both donors and recipients, we know how much the donation process involves and we know what a life changing difference donation makes to people’s lives.  We salute all the donors in the UK who go through this to help others become families and we hope they know how very much they are appreciated.

There is more information about donation in the UK on our website.

 

 

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International surrogacy parents speak to the World at One

October 11th, 2011

Parents Michelle and Paul (names changed) spoke to BBC Radio 4′s World at One today about their experiences of international surrogacy, and the problems with surrogacy law in the UK.  Their legal case (in which we represented them successfully) was reported anonymously by the High Court last December (as Re L (a minor) 2010) and received national press coverage at the time.  Michelle and Paul took the brave decision today to speak about their personal experiences, in order to highlight the difficulties they have faced.

As Michelle and Paul explained, they entered into a surrogacy arrangement in Illinois after a very long and difficult journey of failed IVF and miscarriages.  They did so in accordance with the law in Illinois and underwent a thorough vetting process with a clear legal procedure designed to protect all involved.  Under Illinois law, they were treated as the legal parents of their child from the outset. 

However, UK law treated their surrogate and her husband as the legal parents, despite the fact that neither had any biological connection with the child.  Michelle and Paul therefore needed an English High Court order to become Mum and Dad in the UK. 

One of the key issues for the court here to consider was the mismatch between UK and Illinois law regarding the issue of payments  to their surrogate.  In Illinois, payments for a surrogate’s inconvenience and discomfort can legitimately be made, although payments for a child are not allowed.  In the UK, the law refers to ‘reasonable expenses’ (with no definition of what that means) but confusingly also gives the court a specific power to ‘authorise’ other payments.  Ultimately in this case Mr Justice Hedley, noting that Michelle and Paul were the ‘most careful and conscientious of parents’, agreed to authorise the payments so that they could be approved as legal parents.  However, he did not accept that the inconvenience payments to their surrogate were reasonable expenses. 

It’s a story with a happy outcome, but one which shows that working out what is acceptable to pay for surrogacy at home and abroad is tricky. 

In Illinois there is a clear legal framework in which payments are agreed and set out in writing at the outset (following counselling, psychological assessments and legal advice for all).   If everything is done correctly at the outset, then the child is a part of the intended parents’ family throughout.

There is no such certainty under UK law.   Every judge can interpret what is ‘reasonable’ differently, and the issue will only be considered after the birth of the child when the payments have been long since made, by which time there will always be tremendous pressure on the court to make an order protecting the child’s welfare.  As Michelle pointed out so poignantly, the value paid to the surrogate in this case was in fact no more than what has been accepted as being reasonable expenses for surrogacy in the UK, but it was not considered expenses in their case because the arrangement was an international one set up within a different legal framework. 

We are left asking – where the values being paid for surrogacy are comparable, does it make any sense to treat them differently just because they are called compensation rather than expenses, and just because they are agreed in writing at the outset?  Would it not be better to have a more upfront system in the UK which resolves these issues at the start, rather than after the event?  

You can hear the interview at http://www.bbc.co.uk/programmes/b006qptc

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

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Adopting babies in the UK is getting more difficult

September 29th, 2011

Today’s news about the diminishing numbers of babies being adopted in the UK does not at all surprise us.  The BBC has today reported that only 60 children under one were adopted in the UK last year, of the 3,500 currently in the care system.  This marks a significant drop from the 150 adoptions of children under one completed in 2007.  The drop indicates that the barriers to authorising prospective adopters and to releasing children for adoption seem to be increasing and the process taking longer.  Ann Marie Carrie of Barnado’s has said: “This is a tragedy, it’s a tragedy for the children who are languishing in the care system and frankly it’s a tragedy for those people who have come forward who want to be parents and adopt a child.”

None of this comes as much of a surprise to the many frustrated clients we hear from daily who have considered adoption but instead turned  to surrogacy as a means of building their family.  Again and again we hear that prospective parents have been actively discouraged from pursuing adoption or told that the process will take many years with no certain outcome.  Parents with an existing child are often told they are only eligible to adopt if there is an age gap of several years between siblings, which in practice rules out adoption entirely (depending on the parents ages) given that so few young children are available.  Again and again we hear that couples who are unable to conceive as a result of infertility or other medical problems, and same sex parents wanting to build a family, would love to offer a home to a child who needs it, but find that adoption simply is not an option for them.  Many of these couples go on to be fantastic parents to their own biological children conceived through fertility treatment or surrogacy.  They could have been fantastic adoptive parents to children who desperately need their care.

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Natalie Gamble speaks at The Alternative Families Show 17 September

September 21st, 2011

Natalie Gamble was joined by hundreds of prospective parents at the Alternative Families Show in Covent Garden last Saturday where she was a key note speaker.  The event, in its second year, showcased every aspect of conceiving by alternative methods and was tremendously well attended.  Under the banner of the London Women’s Clinic, Natalie outlined the legal implications of surrogacy and donor conception and the numbers attending the talk underline the fact that this is no longer just an option for the few but is now very much in the mainstream of our culture. 

One of the key issues raised was in relation to the need for a parental order and the often complex (and expensive) process that a family may need to undergo when opting for International Surrogacy. Our advice is always to look at your options for pursuing an arrangement in the UK first – it is a myth that surrogacy is illegal here.   Following a domestic arrangement, and assuming that you stick within the criteria, intended parents can expect a relatively straightforward (and inexpensive) parental order process.  In terms of pursuing an international arrangement it is vital to obtain a parental order once back in the UK as both parents will lack ‘parental responsibility’ (and therefore the authority needed to make decisions on behalf of their child here in the UK) and at least one (if not both parents) will lack status as the legal parent.  There is a strict 6 month deadline (beginning on the child’s date of birth) during which a parental order can be applied for and if this is missed intended parents will lose the opportunity for this bespoke legal solution forever.  Getting legal help with this can range from help from behind the scenes all the way to full representation – depending on budget and what you feel comfortable dealing with.   We always recommend that those planning surrogacy get initial advice, as this alone could save you in the long term. 

Another hot topic at the show was in relation to donor and co-parenting agreements where singles/couples/groups are considering the best approach and whether to have something in writing.  Our advice would be that, although not strictly legally binding, agreements are often extremely valuable in the setting up of such arrangements.  They provide an excellent opportunity to air (and hopefully iron out) the underlying issues and intentions of everyone involved.  If a dispute does arise in the future the court may well give any such agreement weight as part of its exercise to establish exactly what everyone’s intentions were at the outset.  In our experience, those that have gone into their donor/co-parenting arrangements carefully and have considered all the possibilities at any early stage, such as through the medium of an agreement, do not encounter significant difficulties later on.

The Alternative Families Show was an outstanding event and we look forward to next year!

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Can you trust your surrogacy lawyer?

September 12th, 2011

By Natalie Gamble

Appeared in BioNews 624

Theresa Erickson, a high profile Californian attorney specialising in assisted reproduction law (self-styled online and in the media as ‘the surrogacy lawyer’) pleaded guilty last month to charges relating to her involvement in a baby selling scam. The case has sent shock waves through the US assisted reproduction law community, which is reeling at the disgrace of one of its best known members.

But although the story is shocking, I would hate to think that wider conclusions might be drawn about the way in which commercial surrogacy is practiced (legally) in many US states, or that US surrogacy lawyers in general should not be trusted. As well as being a story about the wrongs, this is a story of ethical boundaries being enforced, and a story of reputable US surrogacy attorneys who ensured that an unethical and illegal scheme was exposed and stopped.

How did the scheme work?

According to news reports and information posted online from those involved, Ms Erickson, working with another lawyer, Ms Neiman, and a third woman, Ms Chambers, recruited ‘surrogate mothers’ in the USA and arranged for them to travel to the Ukraine where embryos were transferred which had been created with donated eggs and sperm. The birth mothers were assured that this was perfectly legal and was ‘just another way of doing surrogacy’, and that there was a long list of intended parents waiting for their help.

Once the birth mothers were three months’ pregnant then – and only then – would the conspirators advertise for prospective intended parents. The couples who approached them were told, falsely, that intended parents had backed out of a planned surrogacy and that, for a substantial fee, they could step in. Ms Erickson then filed fraudulent papers with the Californian court to enable the parents to be named on the birth certificate. The scheme was said to have been carried out on at least twelve occasions.

What happened to expose the scam?

One of the birth mothers involved, suspecting something was amiss, approached another US assisted reproduction attorney for advice about whether this really was legitimate surrogacy practice. The attorney was concerned and contacted the chair of the American Bar Association’s Assisted Reproductive Technology Committee. He approached Ms Erickson to ask her about the scheme (she denied any involvement) and then, with the support of a colleague based in California where Ms Erickson was based, followed his professional duty to report dishonest or criminal conduct, and referred the case to the FBI. Following an investigation, Ms Erickson was charged and pleaded guilty. She is currently awaiting sentencing and faces up to five years in prison.

(I should add that the intended parents involved, all of whom were exonerated of any wrongdoing, have since been legally confirmed as the parents of the children they have, in effect, adopted).

Why was the scheme wrong?

This baby-making scam was so deeply and fundamentally wrong that it is difficult to know where to start. What shocks me the most, I suppose, was the flagrant disregard for all those involved – for the birth mothers who became pregnant on the basis of a lie (and the abuse of trust, relying on the reputation of a well-known lawyer, which that involved), for the intended parents whose desperation was exploited so greedily, and most of all for the preciousness of the lives of the children conceived, not within a loving family, but by design and for profit.

This was not, on anyone’s definition, really surrogacy. Under UK law, surrogacy involves artificial conception with the gametes of one or both of the intended parents (which quite obviously has to involve the intended parents from the outset). The rules are different in California, but surrogacy still has to involve an arrangement between specific individuals made before conception. Baby selling or adoption for profit is therefore probably a more accurate categorisation, although of course Ms Erickson was a well known surrogacy lawyer and so those involved were able to ‘sell’ the scam as surrogacy.

Interestingly, Ms Erickson was ultimately convicted, not of baby selling or any offences directly related to assisted reproduction, but of wire transfer fraud. Given the context, this has the resonance of Al Capone being convicted for tax evasion. However, I suppose it is appropriate that Ms Erickson has been held to account for deception (the scheme had, as I understand it, involved lies to the surrogates, the intended parents and even the Californian court). If the rules are anything like they are in the UK, whether or not she goes to prison, Ms Erickson will never be able to practice law again.

What does this mean for surrogacy lawyers in the USA?

Lawyers hold a very special position of trust and credibility. The essence of legal practice is to help others to comply with the law, and this carries a strict duty of honesty and integrity as well as, obviously, legality. This case is a perfect example of why the professional standards for lawyers are – quite rightly – so high. Would this scheme have been credible to the participants had Ms Erickson not been involved and, crucially, had she not been a well known lawyer? It seems doubtful.

This is, in many ways, an almost science fiction style tale of the creation of life for sale. But it is a strange and unusual case, and I would hate to think that wider conclusions about how surrogacy is practiced in the USA might be drawn from it. I salute the bravery and professionalism of the lawyers who ensured that their dishonest colleague was held criminally accountable – it cannot have been an easy decision. On behalf of them and the many other scrupulous US surrogacy lawyers I have worked with, I say shame on you Ms Erickson.

More information about international surrogacy law for those considering a US surrogacy arrangement is available on our website.

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UK Donor Link threatened with closure

August 23rd, 2011

We are dismayed and alarmed by news that funding may be withdrawn from UK Donor Link, an organisation which provides vital support to donor conceived people conceived in the UK before 1991.  Natalie Gamble has written to the Minister of Health Anne Milton to urge her to reconsider the decision, and Natalie’s letter is reproduced below:

Dear Minister

I am writing as a specialist fertility lawyer, responsible for representing many families created through donor conception.  I understand that the public funding provided to UK Donor Link since 2003 may be withdrawn from October, and that as a result UK Donor Link has already had to close its doors to new registrants and is threatened with closure from October.

I urge you to ensure that funding for UK Donor Link continues.  UK Donor Link provides a critical role in the provision of information to donor conceived people, and is the only organisation to offer support to adults conceived with donated eggs or sperm before the Human Fertilisation and Embryology Authority’s Register of Information was established in August 1991. 

Ensuring that donor conceived people have access to information about their genetic heritage  has been a clear foundation of government policy in relation to donor conception consistently over the past decade.  The policy reflects the growing and universally accepted understanding of the importance of openness and availability of information to donor conceived people, and followed a decision of the High Court as to UK law’s compliance with human rights legislation.

In 2002, the English High Court heard a landmark case (R. (on the application of Rose) v Secretary of State for Health) which established that if donor conceived people were denied rights to access information about their genetic heritage this engaged their human rights under article 8.  Mr Justice Scott Baker held that: 

“Article 8 is engaged both with regard to identifying and non-identifying information, albeit in this case the identity of the donors is not directly sought. What is wanted is non-identifying information and a voluntary contact register. I do emphasise, lest there be any doubt about it, that the fact that Article 8 is engaged is far from saying that there is a breach of it. That question, which may fall to be decided on a further occasion, involves consideration of other matters and may depend on any future action taken by the Secretary of State.”

In response to this case, two things happened: 

1. Parliament changed the law in respect of information about donor conception for people conceived in the UK since 1991 whose information was kept on the HFEA’s Register of Information.  Under the Human Fertilisation and Embryology Authority (Disclosure of Donor Information) Regulations 2004/1511 (which came into force on 1 April 2005) newly registered egg and sperm donors had to agree to being identifiable to their offspring once they reached the age of 18; and donors who were already registered (who, other than in limited circumstances, could not continue to donate on an anonymous basis) were given the opportunity to re-register as identifiable.

 2. UK Donor Link was established in 2003, with the support of public funding, in order to enable donor conceived people conceived in the UK before 1991 (whose details were not kept on the HFEA’s Register of Information) to make contact with genetic relatives through DNA testing and other methods of matching.

As a result of these actions, the question of whether the existing law breached article 8 of the Human Rights Act 1998 (justifying a declaration of incompatibility) did not need to be determined by the court.

The action taken by the government was in response to the High Court’s judgment, and represented a clear acknowledgement of the importance of providing access to information for donor conceived people.  The policy encompassed people conceived both before and after 1991 (although acknowledging the different means available for accessing information in each case).  This is inevitable given that, since human rights issues were engaged, they affected people irrespective of the whether they were conceived before or after 1 August 1991.

In 2008, additional steps were taken through the Human Fertilisation and Embryology Act 2008 (following rigorous Parliamentary debate) which further extended the rights of donor conceived people to information about their genetic heritage.  Section 31 of the Human Fertilisation and Embryology Act 2008 allows all donor conceived people whose details are kept on the HFEA Register of Information to have the opportunity to contact genetic siblings in adulthood, thereby extending access to information on the register.  Section 31ZF of the HFEA 2008 also made explicit provision allowing the HFEA to run or to fund a ‘voluntary contact register’ (in practice UK Donor Link) to support people conceived before 1 August 1991.  This therefore represents a recent Parliamentary endorsement of support for UK Donor Link, at the level of primary legislation.

I know that others have written to you emphasising the importance of UK Donor Link and the excellent work that it does for donor conceived people conceived in the UK before 1 August 1991.  In addition, I urge you to consider the legal context of support for donor conceived people in the UK, and the potential human rights implications of any withdrawal of funding.

Yours sincerely, Natalie Gamble

Further information about donor conception law in the UK is available on our website.

If you would like to add your support and write to the Minister of Health, her details are Anne Milton, Public Health Minister, Department of Health, Richmond House, 79 Whitehall, London SW1A 2NS.

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