Posts Tagged ‘fertility law’
Tuesday, May 15th, 2012
For single prospective dads, the decision between surrogacy, adoption and co-parenting is a tough one, with each option having its own benefits and pitfalls. First, ask yourself the question – what role do I want to have in my child’s life? To go it on your own or share the journey? If you want to go it on your own, surrogacy or adoption are undoubtedly the best choices. If you want a shared role, co-parenting could be ideal.
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.
Tags: adoption, Co-parenting, conceiving, family building options, fertility law, fertility lawyer, gay men, gay men conception, gay surrogacy law, international surrogacy, international surrogacy law, single dad, single men, solo dad, surrogacy law, surrogacy lawyer, UK surrogacy
Posted in adoption, Co-parenting, family building, fertility law, gay men surrogacy, international surrogacy | Comments Off
Tuesday, May 8th, 2012
By Sarah Wood-Heath. This article was first published in Bionews on 8 May 2012 and is reproduced by kind permission of the Progress Educational Trust. PET is a wonderful charity which does crucial work informing debate on assisted conception and genetics. You can donate to PET or subscribe to Bionews by clicking here.
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.
Tags: arrangements for children, child access, child contact, child custody, child maintenance, child residence, child support, donor conception law, donor insemination, fertility law, fertility lawyer, gay divorce, gay parenting, gay parenting law, gay relationship breakdown, gay separation, lesbian birth mother, lesbian child maintenance, lesbian divorce, lesbian non birth mother, lesbian parenting, lesbian relationship breakdown, lesbian separation, Natalie Gamble Associates, same sex parenting law, Sarah Wood-Heath, sperm donation law
Posted in donor conception, fertility law, lesbian parenting, same sex parenting | Comments Off
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:
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
Tags: Andrew Solomon, Californian surrogacy, Co-parenting, commercial surrogacy, donor agreement, donor conception, donor conception law, donor insemination, Emma Brockes, fertility law, fertility lawyer, gay men conception, gay parenting, gay surrogacy law, Guardian, international surrogacy, international surrogacy law, Kelen Mori, law, lesbian, lesbian parenting, Natalie Gamble, Patricia Moreno, same sex parenting law, surrogacy agreements, surrogacy lawyer, The Guardian, Will Halm
Posted in Co-parenting, donor conception, family building, fertility law, gay men surrogacy, international surrogacy, lesbian parenting, Natalie Gamble, Natalie Gamble Associates news, same sex parenting | Comments Off
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
Tags: 17 April 2012, fertility law, fertility lawyer, John Healey MP, maternity leave, Natalie Gamble, surrogacy agreements, surrogacy law, surrogacy lawyer, Surrogacy UK, Ten Minute Rule Bill, UK surrogacy
Posted in fertility law, gay men surrogacy, international surrogacy, Natalie Gamble Associates news, UK surrogacy | Comments Off
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.
The woman started working as a midwife sonographer for her employer in July 2001. Her baby was born through a surrogate mother in August last year and the woman began breastfeeding the child soon after the birth, something that can be induced through hormone treatments and drugs. Her employer offered a career break, reduced hours and unpaid leave, but refused to give her maternity leave, so she went to an employment tribunal. It ruled that the issue had to be decided by the ECJ.
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.
Tags: fertility law, fertility lawyer, fertility treatment, gay surrogacy law, international surrogacy, international surrogacy law, maternity leave, Natalie Gamble, surrogacy law, surrogacy lawyer, Telegraph, UK surrogacy
Posted in fertility law, international surrogacy, Natalie Gamble, Natalie Gamble Associates news, UK surrogacy | Comments Off
Thursday, March 15th, 2012
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.
Tags: civil partnership lawyer, Co-parenting, donor agreement, donor conception law, donor insemination, fertility law, fertility lawyer, gay parenting law, known donor disputes, lesbian parenting law, preconception agreement, same sex parenting law, Sarah Wood-Heath, sperm donation law, surrogacy lawyer
Posted in Natalie Gamble Associates news, same sex parenting | Comments Off
Friday, March 2nd, 2012
Following her article written for our blog back in August last year, Kriss Fearon from the National Gamete Donation Trust has asked us to post this message about the important research the NGDT is doing about egg and sperm donors’ experiences, and how you can still help:
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
Tags: donor conception, donor conception law, donor insemination, donor satisfaction survey, fertility law, fertility lawyer, fertility treatment, Kriss Fearon, NGDT, sperm donation law, sperm donor law
Posted in donor conception, family building, fertility law | Comments Off
Friday, February 24th, 2012
By Natalie Gamble, Published in BioNews 645
The family court has been making law on known donors, with a number of recent disputes between known sperm donors and lesbian mothers.
In one recent case (reported in BioNews 644), the Court of Appeal is considering whether a gay sperm donor should have a right to regular contact with his biological son, conceived with his ex-wife who lives with a female partner. The adults had agreed verbally at the outset that the same sex couple would be the parents and that the man would not be involved in bringing up the child. The boy’s mothers say they feel ‘bitterness and betrayal’ at his change of heart. The case follows another recent decision by High Court judge Mr Justice Hedley awarding gay dads contact with two donor conceived girls, aged 10 and 6, following a long and bitter legal dispute with the children’s lesbian mothers about their role (1).
What is interesting is the legal framework the court is developing for dealing with these kinds of issues, and how very different they are from traditional mother-father disputes.
How does UK law work?
UK law is, in theory, clear and certain about the parentage of children conceived through assisted reproduction:
The woman who gives birth is the only legal mother, and the egg donor’s claim to motherhood is excluded.
Spouses (and since April 2009 civil partners) who conceive with donated sperm are both legal parents, and the donor is not the legal father.
A sperm donor who donates through a licensed clinic as a donor (and not as a co-parent) is not the legal father, whatever the marital status of the recipient.
But known donation situations challenge the simplicity of these black and white rules. Where a donor is known to the family, he or she may be invited to play some kind of role in the child’s upbringing. This happens frequently where solo or lesbian mothers conceive with a known sperm donor. But the nature of the donor’s (or co-parent’s) role can extend across a very broad spectrum from minimal contact to full co-parenting, with a million different shades of grey in between. There is obvious scope for dispute if the adults involved later disagree about the nature of that role.
The court’s approach
The law in these situations is complicated, but any known donor can, as a minimum, ask to apply for rights of contact with the child. The UK family court has incredibly flexible powers and the child’s welfare, rather than the wishes of the adults, is its paramount consideration.
In deciding such cases, the court will typically ask: What was intended at the outset and what is the current reality of the arrangement? What is the purpose of the proposed contact? Will it undermine the main family unit, and particularly the non-biological parent?
The trend of the case law seems to be heading towards drawing a broad distinction between known donation arrangements where the known donor gets limited ‘identity contact’, and co-parenting arrangements where the father has a more significant ‘secondary parenting’ role. However, every case is different and the court is typically concerned not to undermine the integrity of the primary family unit (usually the lesbian mothers). In practice, donors usually get a lot less than they are asking for and they will be disappointed if they expect to be treated simply as traditional separated fathers.
The significance of donor agreements
A key question is the extent to which the court will pay attention to any written donor agreement. Even if not legally binding, will it be given weight by the court? The recent case of the two donor conceived girls gives the strongest indication yet, Mr Justice Hedley noting that ‘the court will be bound to give careful consideration and weight to any such agreement’.
However, what is perhaps most interesting is that not one of the cases yet heard by the court has involved a written donor agreement. This does not surprise me – in my fertility law practice I see how known donor disputes are almost invariably a product of mismatched expectations between those involved, with latent problems present from the very outset. The process of putting something in writing (however that is done) is the best insurance against a dispute, facilitating thorough and honest discussions about the role and status everyone will have.
I have, on one or two occasions, had clients who decided to abandon plans to co-parent after going through this process, deciding on reflection that they were better suited to a different route (usually sperm bank donation for lesbian mums, or surrogacy for gay dads). These are the cases, I am sure, where legal disputes have been narrowly avoided.
Lessons learned
It would be a shame for anyone to think, as a result of these cases, that known donation arrangements are a bad idea or that those entering into them are reckless or foolish. I have over the years seen some wonderfully successful co-parenting arrangements, where children are nurtured with absolute transparency about their genetic heritage and a wealth of love and security from committed parents (usually more than two).
But known donation is not the right path for everyone. Where it goes wrong, it goes horribly wrong. I am sure that these disputed cases will not be the last – we are certainly dealing with more disputes of this kind than we were three or four years ago – and I am pleased that the court is developing a specialist jurisprudence which affords these situations the sensitive approach they deserve. In the meantime, anyone entering into a known donation arrangement would be sensible to pay heed to these cautionary tales, and to take on board the need to plan thoroughly, talk honestly and listen carefully, before they get pregnant.
SOURCES & REFERENCES
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British and Irish Legal Information Institute | 20 December 2011
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Tags: Co-parenting, donor agreement, donor conception, donor conception law, donor insemination, fertility law, fertility lawyer, gay men conception, gay parenting lawyer, Human Fertilisation and Embryology Act 2008, law, lesbian, lesbian parent legal case, lesbian parenting, lesbian parenting lawyer, Natalie Gamble, Parenting Law, preconception agreement, sperm donation law, sperm donor dispute, sperm donor law, sperm donor legal case
Posted in Co-parenting, donor conception, family building, fertility law, lesbian parenting, Natalie Gamble Associates news, Parenting Law, same sex parenting | Comments Off
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.
Tags: Californian surrogacy, commercial surrogacy, fertility law, fertility lawyer, gay men conception, gay parenting, gay surrogacy law, Indian surrogacy, international surrogacy, international surrogacy law, international surrogacy lawyer, law, Natalie Gamble, surrogacy agreements, surrogacy law, surrogacy lawyer, UK lawyer specialising in surrogacy, UK surrogacy lawyer, Ukraine surrogacy, US surrogacy
Posted in fertility law, gay men surrogacy, international surrogacy, Natalie Gamble, Natalie Gamble Associates news, same sex parenting | Comments Off
Friday, February 10th, 2012
The courts are all talking about same sex parenting disputes. The Court of Appeal has this week been hearing from a donor applying for contact with his biological son against a lesbian couple who say they feel “bitterness and betrayal” (the case has not yet been decided but you can read the coverage in the Telegraph here). This follows the decision just a few weeks ago by High Court judge Mr Justice Hedley (in P&L (minors) 2011, available here in full) which dealt with a very long and bitter dispute about the role of gay donor dads to two children (aged 10 and 6) being raised by their lesbian mothers. The courts are feeling their way with what they call new models of alternative parenting, and trying to develop an approach for these types of cases, which are far from traditional family law disputes.
Having advised many same sex parents (both at the planning stages and those who end up in dispute) we see some wonderfully successful co-parenting arrangements. But where they go wrong, they go horribly wrong. What is interesting, though, is that parents always seem to fall into one camp or the other. I can honestly say that none of the clients we have advised at the planning stage has ever come back for legal representation later. Equally, not one of the clients we have represented in disputes took legal advice at the outset.
So here are our tips on how to make your co-parenting or known donation arrangement a successful one, and how to avoid ending up in court:
Talk, talk, talk (and more importantly listen, listen, listen)
Don’t rush into trying to conceive. Get to know each other, have honest conversations about the roles you will have and how much involvement you all want. Be as clear as you can about your expectations and be honest with each other and yourselves. If things don’t feel right, have the courage to walk away. There are always other options. You could find another donor or co-parent, or choose unknown donation (as mums) or surrogacy (as dads) if what you really want is parental autonomy.
Understand what roles you will all have
Justice Hedley was keen to “stress the importance of agreeing the future roles of the parties before the first child is born“. And this fits with our experience. Almost all the cases we have seen which have ended up in dispute are ultimately about status. Is the biological dad a father or a donor? Are you equal co-parents, or primary and secondary parents, or parents with another adult role model? Make sure you talk about how you see yourselves and each other, as well as the day to day practicalities of managing your child’s care.
Understand how the law works
The law on parentage is complicated, and who will be the legal parents (and what goes on the birth certificate) depends on the facts, including how you conceive and the birth mother’s marital status. There may be all sorts of different options, both for choosing who the legal parents are and for giving some parental status to the other co-parents if you want to, and problems can often arise where parents have expectations (for example about what goes on the birth certificate) which can’t be met. Take legal advice, or check out the free information on our website about this.
Put in place a written agreement
Donor agreements (or preconception agreements) may not (strictly) be legally binding, but they are incredibly useful. I have always advised parents that putting something in writing helps with the planning, facilitates honest conversations and sets a framework which everyone will feel morally bound by, giving clarity and transparency and setting a really strong foundation.
However, it now seems they may be more legally binding than we previously thought. Although the issue is still untested (the parents in P&L did not have a written agreement, which I suppose comes back to my point that it is not the parents with properly prepared legal agreements who end up in court) the case suggests that the court will pay attention if there is one. Mr Justice Hedley said, in the strongest indication yet, that “the court will be bound to give careful consideration and weight to any such agreement“.
There is no standard format for a donor or co-parenting agreement, but having something which is accurate and personal to you (and prepared with a solid understanding of how the law applies in your particular circumstances) will be much more helpful than any standard pro forma.
If you need help with planning a co-parenting or known donation arrangement, or if you need representation in a dispute, feel free to contact us.
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For single prospective dads, the decision between surrogacy, adoption and co-parenting is a tough one, with each option having its own benefits and pitfalls. First, ask yourself the question – what role do I want to have in my child’s life? To go it on your own or share the journey? If you want to go it on your own, surrogacy or adoption are undoubtedly the best choices. If you want a shared role, co-parenting could be ideal.
