Gamble & Ghevaert

Archive for the ‘Natalie Gamble’ Category

Guardian weekend magazine ‘Gay parenting: it’s complicated’

Monday, April 23rd, 2012

Emma Brockes has written a fabulous major feature for this weekend’s Guardian Weekend magazine on same sex parenting, in which we are proud to be quoted.  The piece tells the story of three modern same sex parent families:

gay parenting 1Kellen and Patricia, lesbian mums from New York who have a daughter and are now expecting twins, following egg swapping IVF – Patricia is the birth mother but she carried embryos created with Kellen’s eggs.

Will Halm and Marcellin Simard, gay dads to three children age 15, 13 and 10, who pioneered surrogacy as gay dads in California, where they were the first same sex parents to be named on a birth certificate together, and where Will now represents others as a fertility lawyer.

Andrew Solomon and John Habich, gay dads to a truly alternative family structure – a son through surrogacy who they are raising together, and three more children co-parented with two different mothers.

It is a wonderful picture of the realities of modern same sex parenting, with scenarios we are increasingly dealing with for families in the UK too.  All the parents involved talk vividly about the challenges and problems they have faced as gay parents – not the playground prejudice and emotional problems many might expect, but losing legal rights when crossing  borders, and grappling with obstructive passport authorities.  But the biggest problem of all for alternative families remains surrogacy.  As Emma says in her article:

gay parents 2There is, in all this, one glaringly unsubtle problem, and that is surrogacy, which as a percentage affects gay men more than any other group. Commercial surrogacy is illegal in the UK, forcing many childless couples to seek help abroad. When they return, the British government is reluctant to endorse an arrangement that undermines public policy. “English law applies its own rules as to who the parents are, irrespective of what happens abroad,” says Natalie Gamble, the country’s leading fertility lawyer. “So even if you’re named as the parent on a US birth certificate, English law will say that the surrogate is the mother and if she’s married, her husband is the father.”

This can lead to some bizarre situations. In 2008, Gamble’s firm acted for a British couple who had used a surrogacy service in Ukraine. “In Ukraine, the law said they were the parents. But under English law, the Ukrainian surrogate and her husband were the parents. The systems were in direct conflict. The result was that the children had no parents and no nationality. They had no right to stay in Ukraine, and they had no passport to cross any borders. That’s the worst nightmare of international surrogacy.”  Gamble persuaded the Home Office to issue the children with discretionary entry clearance, then applied to the high court for a parental order, naming the British couple as legal parents.

gay parenting 3We have long campaigned for alternative families, both individually in court, and by arguing hard for changes to the law (including supporting the UK’s legal changes allowing gay dads and lesbian mums to be named on birth certificates together).  Why do we do this?  Because we believe that parents who love and cherish their children raise wonderful families, no matter what the structure.

With that in mind we want to salute, above all, what Will Halm says about his teenage daughter: “That a test tube baby, from two gay men, is a well-adjusted, smart, polished girl at 15, who is comfortable talking about her family – she is what I would like the world to see. Not the parents who are creating the child, but the children themselves.”

You can read the article in full at http://www.guardian.co.uk/lifeandstyle/2012/apr/20/gay-parenting-emma-brockes

Sunday Telegraph – Surrogacy mother launches maternity leave challenge

Tuesday, March 20th, 2012

We are delighted that the Sunday Telegraph has reported the case of a woman who is challenging the UK’s discriminatory rules on maternity leave, highlighting this important issue which affects many parents building families through surrogacy.  The following article appeared in Sunday’s Telegraph:

A mother who had a baby through a surrogate has launched landmark legal action for the right to paid maternity leave

By Ben Leach, 18 March 2012

Her employer refused to give her maternity leave, so she went to an employment tribunal.  The woman, who has been allowed to remain anonymous by judges, was refused the leave by her employer when she became a mother.  She is suing her employer, alleging sex and maternity discrimination, and has taken her case to the European Court of Justice (ECJ) to decide whether the British laws comply with European Union directives, which could force a change in the rules. The court is expected to make a decision later this year.

An estimated 70 women became mothers through surrogates last year and campaigners say they deserve the same rights as other women.

Natalie Gamble, an expert in fertility law, said that only mothers who were pregnant or those who have adopted are entitled to take maternity leave under the existing rules, which left “a gap” in cases where mothers used surrogates.

Stuart Walne, a spokesman for Surrogacy UK, a support organisation, said the rules created an added “trauma” for these women, who faced disputes over paid leave.

A spokesman for the Department for Business, Innovation and Skills said that there were no plans to change the law regarding people who have a child through surrogacy.

 

We hope the case will make a significant difference, although it is unlikely to do so for some time.  You can find out more from our website about why surrogacy law in the UK needs changing, and about our campaigning work, as well as about our surrogacy law services.

Family Law journal on international surrogacy law

Monday, February 20th, 2012

We were really pleased to be asked to write an article for UK journal Family Law following Natalie and Helen’s participation in the American Bar Association conference in Las Vegas late last year. 

Family Law asked us to give an account of the conference and the issues it discussed, for other family lawyers across the UK.  Natalie’s article looks at the development of UK policy and how the UK courts have increasingly accepted the modern reality of international surrogacy arrangements, with a string of cases (in which our team has been proud to be involved) which have established the principle that the welfare of children should come first.  Quite right too – we believe that all children deserve to have recognition and status within their biological and intended family, however or wherever they were born.  However, the situation is less rosy in other countries around the world, as was clear from the other surrogacy law experts we met at the conference. 

Problems with cross-border surrogacy arrangements have also led the Hague Conference on private international law to consider regulating international surrogacy, which was something discussed widely at the conference.  Natalie’s also article looks at some of the early proposals from the Hague, which include vetting prospective parents as if they were adopting a child rather than conceiving their own biological child.  We are concerned to ensure that the unique nature of surrogacy arrangements is properly recognised in any new international regulation.

If you are interested, you are welcome to read Natalie’s article in full here, or see our website on international surrogacy law.

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.

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.

UK Donor Link threatened with closure

Tuesday, 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.

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.

Crossing borders for surrogacy: the problems for families and policymakers

Wednesday, June 1st, 2011

This article, written by Natalie Gamble for Bionews, was published on 31 May 2011:

bionewslogo3More people are crossing borders to build their families than ever before. Prospective parents can easily access information about treatment options in countries where regulations permit treatments outlawed in the UK or where there is little or no regulation at all. But where surrogacy is involved, going abroad raises very difficult legal issues.Problems arise where the law in the destination country and the law in the parents’ home country do not match up over the basic question of who are recognised as the legal parents. In the worst cases, babies are born without any legal parents, left stranded in the wrong country without identity or nationality. These sorts of issues are not uncommon in cross-border surrogacy cases, since what drives prospective parents to go abroad for surrogacy in the first place is the wish to access more liberal surrogacy laws.
Reasons for crossing borders might include escaping a prohibition on surrogacy at home, or accessing a commercial environment which makes surrogate mothers (and egg donors) more readily accessible. But because the parents may have breached the law or public policy at home, they are often denied legal parental status – even if they have a court order or birth certificate in the foreign country confirming their parentage.

From the perspective of the immigration authorities and family courts in the home countries, this creates a real headache. If a country has made a policy decision against surrogacy (or against commercial surrogacy), granting exceptions and solutions to those who evade the law by going abroad runs the risk of undermining the wider policy and encourages others to follow suit. However, the reality is that public policy collides uncomfortably with the need in practice to protect a vulnerable child who has already been born.

This is not just a problem for the UK. In a recently reported French case, twin children born through surrogacy to a French couple in the US were denied French citizenship. Similarly a German couple were recently denied a German passport for their child born through surrogacy in India.

The UK’s High Court Family Division, with its paramount focus on protecting the welfare of children, has been less intransigent, and there is a growing history of legal decisions which have retrospectively authorised foreign surrogacy arrangements.

The first case of this kind in 2008 involved a British couple whose surrogate twins were born ‘stateless and parentless’ in the Ukraine because of the conflict between UK and Ukrainian law: Ukrainian law said that the British couple were the parents, and British law said that the Ukrainian surrogate and her husband were the parents. The court ultimately sanctioned the commercial Ukrainian arrangement (an arrangement which would not have been legally possible to set up in the UK), awarding parenthood to the British parents. There have subsequently been three further reported cases in the High Court (and other applications granted without the decisions being made public) involving similar decisions.

The big problem is payments. UK law seeks to discourage payments for surrogacy, and the court is therefore struggling with the question of what it should do where parents enter into surrogacy arrangements outside the UK legal framework, and then retrospectively seek the approval of the court.

To be clear, it is not a question of the parents having broken the law. Payments for surrogacy are not (and never have been) illegal in the UK, since a deliberate decision was made when the law was put into place not to criminalise parents or surrogate mothers for making or receiving payments. What is illegal in the UK is for a third party to be paid to broker a surrogacy agreement, a rule which does not (and could not) extend to agencies outside the UK. Ultimately, it is therefore entirely legal for prospective parents to engage foreign professional surrogacy agencies to help them.

When granting a parental order (which secures the status of a family unit created through surrogacy) the UK courts also have an explicit power to ‘authorise’ a payment of more than expenses to a surrogate mother at their discretion. The intent of the law is clearly to make this the exception rather than the rule, and to encourage altruistic surrogacy as the norm. However, the growth of cross border surrogacy is requiring these exceptional powers to be exercised more regularly.

Ultimately, it is positive that there is a legal solution in the UK for children caught in these difficult legal conflicts, and it is critical that this remains the case. Any attempt to tighten up the rules to enforce restrictions on payments more thoroughly will make things worse for innocent children, who in international situations may be put at serious risk.

What we need is better information about the perils of international surrogacy, and ultimately a move towards a more open, honest and straightforward legal solution in the UK (bearing in mind that payments for ‘expenses’ in the UK are often not in practice much different in scale from payments typical for ‘commercial’ US surrogacy arrangements).

Many parents still enter into foreign surrogacy arrangements without being aware of the potential legal complications and then find themselves stranded abroad facing a legal process which is much more complicated than they had anticipated. Others know of the difficulties and some choose not to engage with the UK legal system at all (which is practically possible in certain scenarios, depending on the immigration position) thereby leaving their family’s status entirely unsecured. Either way, children are being put at risk and this is something we have a duty to take very seriously.