Gamble & Ghevaert

Natalie Gamble was delighted to address the Progress Educational Trust’s Annual Conference on 24 November 2010, speaking to an eminent audience about the legal issues for patients having fertility treatment overseas, including donor conception and international surrogacy.

Reproduced below is Rachel Lyons’ article about the event, which appeared in BioNews 586

The session was chaired by Dr Evan Harris, adviser to the Social Liberal Forum and former Liberal Democrat Shadow Science Minister. The main aim of this session was to provide an overview of the current legal and regulatory frameworks surrounding cross-border care and to establish whether any changes are required.

The first panellist of the session was Juliet Tizzard, Head of Policy at the Human Fertilisation and Embryology Authority (HFEA). The HFEA is the UK’s fertility regulator and has a clear responsibility for regulating the activities of fertility centres in the UK. Juliet’s talk mainly focused on the question of whether this responsibility applies to overseas reproductive treatments.

Juliet began by outlining three ways in which the HFEA (and its clinics) has a responsibility, role or duty in relation to cross-border reproductive care. Namely: to inform the patient about the possibility of going abroad for services, to refer them abroad for reproductive services, or to be involved in the shared care arrangement system between the UK, European Union (EU) member states and internationally.

Juliet said the circumstances surrounding shared care arrangements cause the most problems for the HFEA. According to Juliet, the HFEA has sought legal advice on the extent of its powers to regulate the activities of UK licensed clinics which enter into a shared care arrangement. The advice that the HFEA received was unequivocal. The HFEA has almost no powers over clinics that provide information about or refer patients to clinics in other countries.

Regardless of this however, Juliet explained that the HFEA does expect centres, whether referring patients abroad or recommending shared, cross-border care, to provide patients with information about the consequences of having treatment outside the UK. For instance, patients having donor conception treatment abroad should be made aware that they (and their resultant child/children) will not be able to request information from the HFEA about their donor.

Juliet concluded by saying the HFEA will soon be revising the information they provide to patients and will make details available after they’ve concluded a consultation in January 2011. The HFEA hopes this will help those considering whether or not to travel abroad to understand the advantages and disadvantages. This, in turn, will help patients find the clinic that best meets their needs and will enable them to make informed treatment choices at their chosen clinic.

Second to speak was Natalie Gamble, who was introduced as the UK’s leading fertility lawyer and a founding partner of Gamble and Ghevaert LLP. The main focus of Natalie’s talk was the issues surrounding the patchwork of laws and regulations governing cross-border reproductive care. As she said: ‘the law is struggling to catch up’. Natalie’s primary concern was the information available on donor rights, parenthood and international surrogacy arrangements.

Natalie started by confirming information on country of conception is key for patients. Potential patients may not have the same protection that they might have had in their home country. The problem is many are not aware of this and how it might impact on their situation.

People need to be concerned about whether they will be treated as the legal parent of a child born to a surrogate. Natalie said the law of the person’s home country applies. In the UK, a child’s father and mother have parental responsibility for the child if they were married to each other at the time of his or her birth. Where a child’s mother and father were not married to each other at the time of his or her birth, only the mother has automatic parental responsibility for the child.

Natalie used surrogacy in cross-border situations as the perfect illustration of where the intended mother and father may have immense difficulty claiming legal parenthood over the child. As Natalie put it, ‘there is no harmonisation here’. Different countries take radically different stances. She cited the case of re X and Y (Foreign Surrogacy) 2008 to highlight how difficult the situation can be. The case concerned a British couple who went to the Ukraine to undergo surrogacy, but the child faced considerable immigration difficulties. Under Ukrainian law, the commissioning couple were treated as the child’s parents from birth so the surrogate mother was not the child’s mother.

Under UK law, which applied to the commissioning couple, they could not be treated as the child’s parents without a court order. The child was potentially then both stateless and parentless. The judge in the case The Hon. Mr Justice Hedley cautioned those contemplating parenthood by entering into a foreign surrogacy agreement because of the possibility of unintended consequences.

Natalie concluded her talk by making three clear statements. First, there needs to be better public information available for those considering cross-border reproductive care. Second, the law globally is struggling immensely with this area. And lastly, we have to remember that ultimately, the first priority is to the resulting child and ensuring that they are protected.

The third speaker on the panel was James Lawford-Davies, who is a solicitor and partner at Lawford Davies Denoon. His talk focused on the EU’s approach to cross-border care. He explained each EU member state has an obligation to protect the free movement of persons and services and there should be no restrictions on this right. He provided the example of the landmark case of Yvonne Watts who challenged this right all the way to the European Court of Justice.

Even with this landmark case, James emphasised that the law remains uncertain. However, it is hoped that the draft Directive concerning the application of patient’s rights in cross-border healthcare will provide more legal certainty on the quality and safety standards across the EU. James did show slight concern for the margin of appreciation aspect of the Directive, which will mean provisions will be in place to enable member states to enact limitations on certain treatments. However, James (and the audience) did seem pleased the Directive might enforce the requirement that Member States have to provide information about the procedures and services available.

The final speaker of the session was Zeynep Gürtin-Broadbent, a research fellow at the Centre for Family Research at the University of Cambridge. Zeynep began her talk by discussing the difficulty in defining cross-border reproduction, as it is a new and rapidly evolving problem with a lack of empirical data. However, she was comforted by the fact that there are a large number of studies being undertaken, which should provide us with greater insight in the near future.

Zeynep questioned the diversity of cross-border reproduction, namely who/what is doing the travelling (intending parents, donors, the import and export of gametes) and the reason for this travel. Zeynep suggested four categories illustrating why people might go to a different country for reproductive treatment: 1) travel for legal restrictions, 2) resource scarcity, 3) safety concerns and 4) personal preferences.

Zeynep believes that it should be down to the regulators to tackle the issue of patients going abroad. She believes the regulators need to assess whether the current law is fit for purpose. She suggested the harmonisation of laws is a burden for the EU and individual member states to resolve. Zeynep believes there needs to be sound empirical evidence and creative thinking to solve these dilemmas.

The discussion that followed covered issues of the welfare and interest of the child, the disparity of the information available and the issues surrounding surrogacy and legal parenthood. The final word final word must go to Juliet Tizzard who said that ‘[the HFEA] is not wanting to wash their hands of this issue’. We await the results of the consultation, which will be launched in January, with interest. A report on the third session of the conference will be published in next week’s BioNews. PET is grateful to the conference’s gold sponsors Merck Serono.

There is more information about international surrogacy law, fertility law in the UK and donor conception law on our website.