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Archive for the ‘international surrogacy’ Category

President of the High Court Family Division endorses international surrogacy

Tuesday, 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.

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

Tuesday, 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

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

Monday, 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.

International surrogacy parents speak to the World at One

Tuesday, 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.

Adopting babies in the UK is getting more difficult

Thursday, 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.

Natalie Gamble speaks at The Alternative Families Show 17 September

Wednesday, 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!

Can you trust your surrogacy lawyer?

Monday, 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.

Your surrogate will keep the baby, won’t she?

Monday, August 8th, 2011

So many clients tell us that this is the question they are asked when they tell their friends – and even their fertility doctors – that they are considering surrogacy.  Is it true?  Are surrogacy arrangements in the UK very risky, with the surrogate mother holding all the cards and having an absolute right to keep the baby?  Do those who embark on surrogacy arrangements frequently end up with the surrogate mother keeping the child in practice? 

It is certainly a widespread belief, and one which in the globalised world is an important factor which drives people abroad to surrogacy destinations like the USA, the Ukraine and India, where surrogacy arrangements are legally enforceable.

But the reality is that this is in fact incredibly rare in practice.  To date, there have been only two reported cases in UK legal history of the court having to arbitrate between the intended parents and a surrogate mother where a surrogacy agreement has broken down.  In only one of these cases was the surrogate allowed to keep the baby, since the UK courts (far from being obliged to uphold the status of the surrogate mother) in fact have flexible powers to determine what is in the child’s best interests where something does go wrong. 

So why do surrogacy arrangements in the UK so rarely go wrong?  Our experience of working with families in these situations tells us that it is because surrogacy is not entered into by parents or surrogates lightly, but with the benefit of enormous care, thought and respect.  Often with the help and support of long established and experienced agencies like Surrogacy UK and COTS, we find that parents and surrogates invest heavily in building a strong foundation to their relationship, and treat it with significant value. 

The reality of surrogacy in the UK is that arrangements far more often end up in a lifelong friendships than in custody disputes.

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

Surrogacy law: court awards parenthood to deceased father following Indian surrogacy

Tuesday, July 12th, 2011

The High Court has made an unprecedented order awarding parenthood to a deceased father of a baby boy born through surrogacy in India.  A couple, known only as Mr and Mrs A, entered into a surrogacy arrangement and their son was born in India on 12 April 2010.  The biological parents were Mr A and either Mrs A or an unknown donor.  However, under UK surrogacy law, the Indian surrogate and her husband were treated as the baby boy’s legal parents, and Mr and Mrs A therefore applied for a parental order to reassign parenthood and gain a UK birth certificate naming them as mother and father.

But Mr A tragically contracted liver cancer during the course of the proceedings and died, leaving the High Court to make a landmark decision to award parenthood to the mother and her deceased husband.

The case was complicated by the fact that only couples – and not single people – can apply for parental orders.  When the UK’s surrogacy laws were debated in 2008, Parliament decided that only couples should be able to commission surrogacy arrangements.  Parents who apply for parental orders following surrogacy must therefore either be married or living as partners in an enduring family relationship.

Leading fertility lawyer Natalie Gamble, who drafted an amendment to the law in 2008 (which was debated in Committee but rejected) which would have allowed applications from single parents, comments: “The case shows how dangerously outdated our surrogacy laws are.  Although Mrs Justice Theis was able to find a way around the law in this case because the father had died after issuing the application, what would have happened if either of the parents had died earlier, perhaps during the pregnancy?  This has always been an accident waiting to happen, and the restrictiveness of the current law is leaving children vulnerable and unprotected.”  

Natalie, whose firm has dealt with many of the leading international surrogacy cases heard by the High Court in recent years including the first to ratify a foreign arrangement, goes on to say:  “The case demonstrates the continuing difficulties the courts are facing in dealing with surrogacy arrangements.  The High Court is repeatedly having to stretch the legislation in order to secure the status of vulnerable children born through surrogacy, and the emotional and financial cost of this for the family involved is significant.  We need a better system of law which caters for these kinds of eventualities, and gives clarity and certainty to ensure that children being born through surrogacy (and their parents and surrogates) are properly protected.”

The case is also the first published case to ratify an Indian surrogacy agreement in which more than expenses were paid to a surrogate mother, following a line of previous published cases ratifying commercial payments for surrogacy made to US and Ukrainian surrogate mothers.

Click here for more information about international surrogacy and about surrogacy for single people.

BBC Radio 4 Woman’s Hour debates whether the UK should allow commercial surrogacy

Friday, June 3rd, 2011

radio4-logo

BBC

Natalie Gamble was interviewed on this morning’s Woman’s Hour by Jenni Murray, in a debate about whether it is time for UK law on payments for surrogacy to be updated.  Responding to the comments made by High Court judge Mr Justice Hedley on last weeks’ World at One (about several cases in which we acted for the parents), Woman’s Hour considered how the UK should respond to the growing phenomenon of Brits going abroad for surrogacy. 

Working with many parents conceiving through international surrogacy arrangements, we know very well how difficult the current law is for  families, and the risks it poses for newborn children who can be stranded stateless and parentless in a foreign country.  Natalie was interviewed on the programme together with Kim Cotton, surrogate mother and founder of COTS, and Lecturer in Ethics Anna Smajdor.  You can listen to the debate at http://www.bbc.co.uk/programmes/b011jx05.

There is more information on our website about surrogacy law and about the reasons why we think the current surrogacy laws need changing.