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UK surrogacy laws are unfair, says MP today in Parliament

Tuesday, April 17th, 2012

John Healey MP (the former Shadow Secretary of State for Health) spoke clearly and compellingly in the House of Commons this afternoon about the need for proper maternity leave and pay for mothers through surrogacy in the UK (you can watch John Healey’s speech in full here). Introducing a Ten Minute Rule motion, he told Parliament about his constituents, surrogate mother Amy Bellamy and her cousin Jane Kassim.  They came to see him at his surgery having been “stunned” to discover that Jane had no legal right to maternity leave or maternity pay to care for the twin daughters Amy had carried for her after Jane was told at 15 that she could never bear children.

We, and Surrogacy UK, are proud to have supported today’s important landmark, the first time this issue has been properly raised in Parliament.  As we know so well, for parents who have struggled to build their families through surrogacy (often after a long and difficult journey of infertility), the lack of basic rights to care for their newborn baby can feel like the final insult.  It makes no sense and has never been a policy decision; just a gap in the law which has not been addressed.  But it is important, as the current position leaves children born through surrogacy in the UK without the legal protection afforded to other children born to their mothers or adopted.

As well as talking about maternity rights as the urgent first step needed, John highlighted some of the wider problems with UK surrogacy law which need addressing, including:

the parents not being named on their child’s birth certificate,

problems dealing with the child’s medical treatment,

delays in the court system to reassign parenthood, and

the absolute veto the surrogate and her husband hold, no matter what is in the child’s best interests.

The UK’s surrogacy laws were designed in 1990.  After 22 years we live in a much changed world, with more children born through surrogacy and a much more sophisticated understanding of families created in unusual ways.  The law on surrogacy was not reviewed properly when Parliament had a chance in 2008 and is overdue for review.  John drew attention to other models of surrogacy law, including pre birth orders, which have been much more successful in dealing with surrogacy arrangements in certain US States, and which the UK should look to.

What was said in Parliament?

“Unlike other mothers, Jane is entitled – having her baby through a surrogate mother – to only 13 weeks parental leave unpaid, and then only entitled to it when she and her husband have a parental order in place.  That means that for mothers like Jane, they are faced with the choice of going back to work very quickly or indeed giving up their jobs entirely.  Today is a day when I hope this House will take the first step in closing this legal loophole.

“As the leading lawyer in this field says:  The conditions for a parental order do not place the child’s welfare first, and ultimately children born through surrogacy do not have the same protection as other children to the time to bond with their parents in the early months of life.  That is from Natalie Gamble, a leading legal expert in this field and one who has conducted more cases and seen through more parental orders than any other lawyer in the country.

“There are probably around 100 babies born through surrogacy each year, but the number is growing as society is changing and science is advancing.  Surely there must be a good case for Britain, like some States in the US, to have a system of pre birth orders.  But the first and most important step is to secure basic maternity rights.  So that mothers like Jane who have their children born through surrogates have the same rights as any other mothers who give birth themselves or indeed who adopt children.

“It is wrong that thousands of mothers who have their own babies or who adopt have a legal right to 39 weeks maternity pay and up to 52 weeks maternity leave, while others have a right to only  13 weeks parental leave unpaid.  It is wrong that such parents cannot put their names on their children’s birth certificate, they cannot make decisions about  medical treatment for their children until they have a formal parental order in place.  It is wrong that such a legal step can be blocked completely by the surrogate mother or her husband; and wrong that it may take months, if a magistrates court is busy, to get that order in place.  Above all it is wrong that mothers like Jane are denied the same basic rights to the time they need together with their newborn babies that other mothers have.

“Amy simply wanted Jane to have the same joy as a mother as she had with her own son Archie.  Together they make a very powerful case for legal change.  This is their campaign and I hope this House will back them today.”

What next?

The Bill proceeded unopposed and was formally listed for a second reading, although in practice it is rare for Ten Minute Rule Bills to be given sufficient Parliamentary time to become law.  However, a cross party group of MPs will now meet with the Minister for Employment to press for government-led change.  We will continue to support this however we can and if you want to get involved or can help with case studies, please do contact us.

Woman’s Hour today

Natalie was also interviewed on this morning’s BBC Radio 4 Woman’s Hour, following a discussion on the lack of maternity leave rules for surrogacy which Natalie contributed to back in 2009, and updating the programme on what was happening today.  You can listen to Natalie on today’s Woman’s Hour here.

More information

Find out more about why we think surrogacy law needs reviewing.

Find out more about our campaigning work.

Find out more about surrogacy law.

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Parliament to debate surrogacy maternity rights

Friday, April 13th, 2012

John Healey MP will be presenting a Ten Minute Rule Bill in Parliament next Tuesday 17 April calling for improved maternity rights for intended parents through surrogacy.  Surrogacy UK and Natalie Gamble Associates have supported John in getting this Bill to this position by providing information on the increasing prevalence of surrogacy and the difficulties suffered by intended parents receiving maternity leave.

Currently parents who have a baby through surrogacy have no legal rights to time off work or to maternity pay, even though they are caring for their own biological child in the first months of his or her life.  This is very different from parents who give birth or adopt a child, who are entitled to maternity or adoption pay and around a year off work to bond with their new child.

As those who follow our Blog will know, this is an issue that we have been campaigning on for many years and we are delighted that it is finally being debated in Parliament.   Although the chance of a Ten Minute Rule Bill becoming law is statistically small, this is an important step towards putting this problem on the Parliamentary map.

The Bill will be screened live on on Tuesday 17th in the afternoon; you should be able to catch it on the Parliament TV channel or on the web:  http://www.parliamentlive.tv/main/home.aspx.  We will update the Blog with news as things go forward.

Find out more about surrogacy law and our campaigning on this issue:

Radio 4 Women’s hour, 3 June 2011 – Interview with Natalie Should surrogacy law be changed?

Natalie writing in The Guardian, 29 December 2010 – After the birth of Elton and David’s son, can the UK deliver surrogacy reform?

Evening Standard, 27 October 2009 - Ministers face a legal challenge over rules barring women who use a surrogate from receiving maternity pay

Medical News today, 28 December 2008 – Leading fertility patient organisations call for urgent changes to surrogacy law

Bionews, 28 April 2008 – Why UK surrogacy law needs an urgent review

 

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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.

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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.

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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.

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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!

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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.

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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.

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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.

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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.

 

 

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