UK law is not geared up to cater for all single would-be parents. For men, building your own biological family through surrogacy is difficult, given the need to find a woman to carry your child and the fact that the law may not operate in your favour. The law is more supportive on adoption, but forming a non-biological family requires patience and determination.

Surrogacy – establishing a surrogacy arrangement as a single parent is difficult. As intended (biological) parents are not treated as their child’s legal parents automatically, parents through surrogacy need to go through a specific legal process to achieve this status. This particular process, though, is only available to couples, effectively denying single parents the legal solution available to everyone else. Our previous government’s rationale for this (despite our attempts to persuade them otherwise) was that surrogacy is such a serious undertaking, only couples should be eligible.

This has the knock-on effect of making it almost impossible to join one of the UK’s surrogacy organisations as a single dad, since their first question to applicant members is whether they can resolve their status after birth. This essentially ousts all single parents.

So, finding a surrogate is challenging. Some single dads find a willing volunteer among their friends and family. Others go abroad, where the same restrictions don’t apply locally. This undoubtedly overcomes the initial hurdle of getting things off the ground, but it only gets you half way there. The anomaly in the law on surrogacy means that once your baby is born, the surrogate will automatically be treated as the legal mother. You will only be treated as the legal father if the surrogate is unmarried and even then, you are unlikely to have full parental status in the UK. If born abroad, your child may not be British.

There are various options for fully securing your legal status, and/or extinguishing that of your surrogate, but the law is complex and remains largely untested.

Co-parenting can be an effective way for single dads to have a family and share the load. But, it is naturally complicated, not in the set-up, but by virtue of the distinct influences each co-parent will have on your child.

The best arrangements are built on a strong foundation of openness and matched expectations – the primary cause of co-parenting turning sour is a lack of communication at the outset. The logistics of pregnancy, childbirth and breast feeding will, in the majority of arrangements, mean that your baby will live primarily with the birth mum (and her partner). It is important that this doesn’t lead to resentment.

The courts are beginning to show an appetite for recognising co-parent fathers in situations where things have gone wrong. The law remains muddled though and there are still improvements to be made.

Your legal status (and security) will depend on the circumstances of the birth mum, and whether she is in a relationship. Co-parenting arrangements often involve more than two parents but the law only recognises a child as having a maximum of two parents. This means that the law can override your status as a legal father, instead giving the status as ‘second parent’ to the birth mum’s partner

Adoption is another way of creating a family, with children much in need of a loving parent. This is a different experience to conceiving a family, with the inherent need to engage with the authorities before you can be matched with your child, the non-biological relationship you will have and the fact that your child may have particular needs and be older.

The law is much more up to date with respect to single parents hoping to adopt. Like everyone else, you will need to go through a rigorous assessment process and additionally be able to show that you are the whole package in one, in terms of meeting the needs of a child.

Adoption is possible for you within the UK and abroad, although you will need to ensure that the laws in your destination country are compatible. In advance of your match you will need to be approved as a prospective adopter. The process usually takes 6-8 months and involves attending preparation groups and working with a social worker who will perform background checks, seek references and do home visits before preparing a detailed prospective adopter’s report which will be presented to an adoption panel for their consideration. If successful, you will then begin the matching process either within the UK or abroad.

So there are now more choices than ever for single dads to build their own families with or without sharing the responsibilities. It may not be straightforward but it is by no means impossible.

There is more information on our website about surrogacy for single dads, co-parenting as a father and adoption, or you can contact us for help or advice.

As ever, the true story behind the headlines is very different.  The agency in question (Altrui) operates legally, helping parents to find egg donors in the face of donor shortages and supplementing the services otherwise exclusively provided by licensed fertility clinics.  Let’s not forget that fertility clinics also profit from egg donation, and have done since the birth of IVF.

The story is, as far as the agency goes, just tabloid hot air.  But what interests me is why the UK press seems to have such an aversion to students acting as egg donors.  Medical students have long acted as sperm donors, and why not as egg donors too?  On anyone’s measure, students at Cambridge University are a pretty bright lot, capable of understanding the risks and implications of donating eggs.  The maximum allowed payment of £750 for egg donation expenses may seem attractive, but it is not much incentive once you know how much cost, time and effort is involved (the actual out of pocket costs of an egg donation cycle commonly run to this amount), and even if it is an incentive, so what?  Wasn’t one of the reasons for the HFEA increasing the payment to egg donors from £250 to £750 last month to encourage more women to donate?  Let’s have some honesty about this at least.

What is very important is that anyone considering egg donation fully understands the medical risks and the long term implications of helping to conceive a child who may wish to contact them in 18 years’ time.  That is true for all egg donors, but where the donor is younger (which is possibly more likely with students, but not necessarily so) or more likely to be attracted by the headline payment, we have even more of a duty to take care.  But no one in the UK would be allowed to donate eggs without counselling, information and clear medical advice about the risks.  If students want to help others conceive having gone through this intensive preparation, why should they not make that choice?

Sarah Wood-Heath, solicitor at Natalie Gamble Associates

There have been a number of high profile cases of late involving disputes within alternative family structures. Primarily these concern fathers or known donors seeking more of a relationship with their child than they originally wished for. However, another interesting and sadly increasing area we are witnessing is the breakdown of relationships in two-mother lesbian parent families.

As with any relationship breakdown, issues to be dealt with include division of the finances, any civil partnership dissolution and with whom any children will live (as well as contact with the non-resident parent). But these types of divorce cases have a more complex dynamic, with difficult legal and social questions arising from the mismatched biological (and often legal) status of the two female parents.

To date there has been very little judicial guidance as to how much weight the family court will place on the importance of being a birth mother in divorce proceedings, and whether in such cases the birth history and biological link should be considered more important than the relationship between the non-birth mother and the child.

Of course every case is unique, but the two main cases so far where the court has considered and explored these issues in principle make for very interesting reading.

The first case was that of Re G [2006] UKHL 43 which involved a difficult dispute about where the children conceived by a lesbian couple through artificial insemination should live following their separation. The High Court and Court of Appeal ruled that the non-birth mother should have primary care of the two children (mainly because the birth mother had behaved badly and removed the children to Cornwall deliberately to obstruct her former partner’s relationship with the children).  However, in a landmark judgment the House of Lords ruled that the lower courts had not given sufficient weight to the fact that the birth mother was the biological mother of the children and ordered that the children should continue to live with her. The House of Lords expressly stated that the lower courts had placed too much weight on the behaviour of the birth mother and not enough on the biological basis of her relationship. This was a ‘significant consideration which was of importance’. Being the birth mother is, it seems, significant.

The more recent case of T v B [2010] EWHC 1444 (Fam) involved a lesbian couple who were not civil partners but had lived together for many years and had undergone fertility treatment to conceive a child together. Once the child was born they both undertook the role of parents. Although the law at the time did not recognise the non-birth mother as a legal parent, she sought – and was given by the court – parental responsibility, which meant she had full legal authority to take decisions as a parent and to be involved in her child’s care.  Following separation the birth mother applied to the courts for financial provision from the non-birth mother. The court ruled that as the non-birth mother was not a legal parent she had no financial obligation despite the fact that she had to all intents and purposes been a ‘parent’ to them from the very start. The court was somewhat constrained by the wording of the law (and its frustration was evident) but it was clear in this case that whether you were a birth mother or not was deeply significant.

When the court are considering cases involving disputes about care arrangements for children, the court has a range of factors it has to take into consideration. These include: the child’s age, sex and background; their physical, emotional, educational needs; the effect of any change in circumstances; their ascertainable wishes and feelings; any harm the child has suffered or is at risk of suffering and how capable each parent is in meeting the child’s needs.  The welfare of the child will be the court’s paramount consideration and any decision made by the court will be based on what the court considers to be in the child’s best interests. In practice this gives a lot of flexibility, although it is clear that the court is inclined to place weight on the importance of the biological link with the birth mother. In relation to child maintenance questions, this bias is more institutional, with clear legal rules which make only legal parents (and their spouses) financially responsible.

On 6 April 2009 the law in the UK changed to allow two mothers to be named on the birth certificate, recognising them both as the legal parents and giving them both financial responsibility for their children. It is notable that both of the birth mother vs non-birth mother cases have involved children born before this legal change.  Whether or not the new law will give greater weight to the non-birth mother’s position waits to be seen (although this will certainly be the case in relation to financial questions). Things are likely to be muddied further by the increasing blurring of the lines between birth and biological parenthood for lesbian couples. We are certainly seeing more egg swapping cases, where an egg has been taken from the non birth mother, fertilised and then transferred to the birth mother. Where parents in these situations separate, will the birth mother or the biological mother be the one with the upper hand?

Same-sex divorces are undoubtedly legally complex where children are involved. In a dispute over a child within an alternative family structure, an argument often run is the importance of the biological link, and the genetic identity of the child. With changes to the law and even more complex family structures emerging, it will be interesting to see how the court responds.

Kellen 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:

There 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.

We 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

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.

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

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

We love it when we get happy news from the families we work with, but today we too have a chance to announce a new arrival.

Solicitor Sarah Wood-Heath has joined our team from London.  With five years’ experience as a qualified lawyer, Sarah’s background is in complex disputed family and children law and she has particular experience working for alternative families.

We are thrilled to welcome Sarah on board to help us meet growing demand for our specialist expertise.  Sarah will be an integral part of our team’s legal work, and will have particular responsibility for supporting parents in disputed situations (including known donor disputes and financial claims in respect of children) for which we are seeing greater and greater need.  With recent publicity surrounding same sex parenting disputes, an issue with which we have long been involved (including helping to make the new laws for same sex parents in 2008), this is an area of our practice we expect to keep growing.  Sarah is also able to help with relationship breakdown and pre-nutial agreements.

Sarah has two small sons, and she and her family are loving their relocation to the New Forest in order to join us.

You can contact Sarah on 0844 4560017 or at sarahwh@nataliegambleassociates.com.

Results are coming in from the National Gamete Donation Trust’s donor satisfaction survey, which asks egg and sperm donors what it was like to be a donor.  We’re using what donors tell us to make positive changes to the way donors are treated. The more answers we get, the stronger the message, so if you’ve been a donor, we really need to hear from you!

Sperm donors told us: they would like more information about the families, help with the goodwill message and that some clinics could provide better donation facilities.   Egg donors told us: they would like more support during the donation cycle, clearer information on aftercare and to be reminded it’s OK to ask for pain relief if they need it.   Other requests are to make counselling and clinic appointments at times that are easier to arrange around working hours and to give advice on ways of talking about the donation with friends and family.

The survey is running until the beginning of June 2012, so there’s still time for you to reply. If you’ve been a donor, or just thought about it, please take ten minutes to tell us how it went.

Find out more about the National Gamete Donation Trust

Find out more about the law on egg donation and sperm donation from our website