Posts Tagged ‘law’
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, 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
Tuesday, December 13th, 2011
Sir Nicholas Wall, the President of the High Court Family Division, has made public his decision to give parenthood to the British parents of twins born through surrogacy in India. The President said the issues were of “considerable public importance” and he wished to endorse the previous judgments of Mr Justice Hedley in other similar cases.
The decision, from one of the UK’s most senior family judges, represents a bolstering of the UK court’s position on international surrogacy: that although commercially organised surrogacy is not yet permitted in the UK, British parents can be awarded parenthood if they go abroad and pay a foreign surrogate mother more than her ‘reasonable expenses’. Sir Nicholas Wall made clear that the court’s paramount consideration is the child’s welfare, and that a birth certificate will be given as long as there has been no exploitation and the parents are not circumventing child protection laws in the UK.
In this particular case, two Indian surrogate mothers (carrying embryos created with the intended father’s sperm and eggs from the same anonymous donor) gave birth to a boy and a girl within a few days of each other, following a surrogacy arrangement commissioned by a British couple. A total of some £27,000 was paid to the Indian clinic. The court was ultimately satisfied that the parents were “entirely genuine and straightforward” and that “it is plainly in the interests of these two children that they should brought up by Mr and Mrs A as their parents”.
The case follows similar decisions by Mr Justice Hedley in the cases of Re X and Y (2008) in which British parents paid £23,000 to a Ukrainian surrogate mother, Re S (2009) involving a Californian surrogacy arrangement, Re L (2010) involving a surrogate mother based in Illinois and Re IJ (2011) involving a Ukrainian surrogacy.
For further information you can read the judgment in full or see our international surrogacy law pages.
Tags: Californian surrogacy, commercial surrogacy, fertility law, fertility lawyer, fertility treatment, gay men conception, gay surrogacy law, Human Fertilisation and Embryology Act, international surrogacy, international surrogacy law, law, Natalie Gamble, surrogacy agreements, surrogacy law
Posted in family building, fertility law, gay men surrogacy, international surrogacy, Natalie Gamble Associates news, same sex parenting, Uncategorized | Comments Off
Monday, October 31st, 2011
Natalie and Helen were delighted to attend the American Bar Association’s Family and Assisted Reproductive Technologies (ART) conference in Las Vegas (26-29 October 2011). The conference brought together the world’s leading experts in assisted reproduction and surrogacy law, with lawyers from many US states (where laws vary enormously), Germany, Italy, Canada, Australia, the Ukraine, India, Brazil and Greece. Natalie was invited to speak about English law at a packed session, and was proud to represent the UK alongside leading fertility law experts from Germany, Italy, Australia and Canada.
The ABA conference comes at a key time, with the Hague Conference putting surrogacy on its agenda for international regulation, as well as increasing numbers of clients crossing borders for surrogacy and ART. We were thrilled to meet so many professionals who, like us, understand and care passionately about helping people build families successfully. It was abundantly clear that surrogacy lawyers across the globe need to play a key role, both in helping parents get the best legal protection and recognition possible (while national laws are so disastrously mismatched), and in advocating more widely at an international level as a voice for those conceiving in alternative ways.
Thank you to the American Bar Association for hosting such an inspiring international conference, which we know will be just the first step in building a strong international community of advocates for alternative families.
More information about international surrogacy law is available on our website and in particular check out our area for non-UK advisors and US attorneys.
Tags: Californian surrogacy, commercial surrogacy, donor conception law, embryo law, fertility law, fertility lawyer, fertility treatment, gay men conception, gay parenting, gay surrogacy law, international surrogacy, international surrogacy law, IVF, law, Natalie Gamble, sperm donation law, surrogacy law
Posted in donor conception, family building, fertility law, gay men surrogacy, international surrogacy, Natalie Gamble, Natalie Gamble Associates news, same sex parenting, Uncategorized | Comments Off
Thursday, October 20th, 2011
The HFEA announced yesterday that, after an extensive public consultation and review, the system for paying egg and sperm donors in the UK is changing. Instead of donors being paid out of pocket expenses plus an allowance for loss of earnings of up to £250, egg donors will now be paid a blanket £750 per cycle, and sperm donors £35 per visit.
There was much discussion yesterday about the new payment to egg donors of £750 and whether this would encourage women to donate eggs for the money who wouldn’t otherwise have done so.
However, if we understand the HFEA’s press release correctly, this seems to be a bit of a misunderstanding. The new figure of £750 does not seem to be an increase on the existing £250 cap, but rather a change of how the system works. Women used to be able to claim their actual (unlimited) out of pocket expenses plus an allowance of £250 to represent (nominally) loss of earnings. They can now claim £750 to cover everything, no matter what their actual expenses are. In practice we know that expenses during an egg donation process can mount up very quickly, covering things like travel, drugs, the cost of scans and blood tests at a local hospital, childcare and time off work for consultations, counselling, scans and egg collection. It’s not an easy or an inexpensive process. The HFEA’s new rule therefore may not mean more money for donors, just a simpler way of dealing with expenses. We think the change is less significant than it sounds, and will make little difference to donors or recipients in practice.
However, if nothing else, we hope that all this discussion about donation in the media will encourage donors to come forward. Working with both donors and recipients, we know how much the donation process involves and we know what a life changing difference donation makes to people’s lives. We salute all the donors in the UK who go through this to help others become families and we hope they know how very much they are appreciated.
There is more information about donation in the UK on our website.
Tags: donor conception, donor conception law, donor insemination, fertility law, fertility lawyer, fertility treatment, HFEA donation review, IVF, law, Natalie Gamble, sperm donation law, sperm donor law
Posted in donor conception, fertility law | Comments Off
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.
Tags: adoption, fertility treatment, IVF, law, UK surrogacy
Posted in adoption, fertility law, international surrogacy, same sex parenting, UK surrogacy | Comments Off
Friday, November 26th, 2010
We have had an article published in leading legal journal Family Law about the case of T v B recently heard in the High Court. The case involved a lesbian couple in dispute following a split, and the court found that the non birth mother was not a ‘parent’ under English law and so not financially responsible for her child. Our article reviews the case and its implications for same sex parenting.
You can read the article in full at Lesbian mothers in dispute: T v B (Family Law, November 2010) or find out more from our website about lesbian parenting law.
Tags: law, lesbian parenting dispute, same sex parenting, T v B
Posted in donor conception, fertility law, lesbian parenting, Natalie Gamble, Natalie Gamble Associates news, same sex parenting | Comments Off
Thursday, December 10th, 2009
We have worked with leading gay rights organisation Stonewall to produce a guide to the new laws on gay and lesbian parenting, called Parenthood for Same Sex Couples. Funded by the Big Lottery Fund, the guide aims to provide clear information to service providers about the law on same sex conception and parenting, including donor insemination (and the new legal rights for lesbian couples to be named on birth certificates), co-parenting arrangements, and UK and international surrogacy for gay men. The guide will be distributed to key service providers nationally (including law centres) and is available on the Stonewall website.
We are delighted to have helped with this project, as we think it is vitally important for there to be good and widespread understanding of the UK’s new fertility laws which rightly recognise gay and lesbian couples as parents of children they conceive together.
Read ‘Parenthood for Same Sex Couples’.
More information on gay surrogacy law from our website.
More information on donor insemination and co-parenting law from our website.
More information about our public service work and fertility law services to charities.
Tags: Co-parenting, donor insemination, fertility law, gay, law, legal, lesbian, Stonewall, UK surrogacy
Posted in Co-parenting, donor conception, fertility law, gay men surrogacy, international surrogacy, lesbian parenting, Natalie Gamble Associates news, UK surrogacy | Comments Off
Wednesday, September 9th, 2009
We welcome the Department of Health’s announcement today that embryos which exceed their five year storage period before 1 October 2009 will not now have to be destroyed (article in the Times today).
We have been in contact with the Department of Health on this issue for some time, arguing the case for various couples who are fighting to save their embryos because they were stored too early to benefit from new rules coming into force on 1 October. These couples include Melanie and Robert Gladwin from Gloucester, who stored embryos in anticipation of Melanie’s treatment for cancer in 2003 in order to preserve their chance of having a family, but who were told their embryos would be allowed to perish because their storage period expires before 1 October. Robert and Melanie’s story was reported in the Daily Telegraph on 7 August and is covered again today in response to the government’s announcement. Robert and Melanie, who have been fighting to save their embryos, have won political support for their campaign and yesterday were invited to present a petition at 10 Downing Street. They are not the only couple to fall into this gap in the law. Michelle Hickman has also been a vocal campaigner on this issue for several years, and there may be many other couples who are affected.
In response to today’s decision that such ‘out of time’ embryos can now be stored for at least ten years, Melanie Gladwin has said: “We are ecstatic at the news from the Department of Health. It has been a tiresome and stressful time and are extremely thankful they have been able to consider our case so promptly. We eagerly await further news that we can keep our embryos for the full period. We hope this announcement brings joy to the other couples and families affected like us.”
Natalie Gamble, representing Robert and Melanie, says: “While the announcement today gives much needed hope to men and women whose precious embryos have already reached the end of their five year storage term, we need to make sure that the proposed changes go far enough to give the time needed. For young women who suffer infertility prematurely, these embryos in storage often represent their last chance of having a child of their own. We will be looking very closely at the proposals to confirm that couples like Robert and Melanie will be able to extend their chance of having a much-wanted child for as long as possible, and not just for a few more years.”
Further note to this blog on 11 September 2009:
We are also now delighted to report that the Department of Health has now confirmed that, after the publication of the Minister’s Order, additional special regulations will be made to ensure that ‘out of time’ embryos like Robert and Melanie’s will be able to be stored, not just for ten years, but for the full extended period normally allowed for these kinds of medical situations.
More information on embryo storage law is on our website.
Tags: embryo storage, fertility law, law, Melanie Gladwin, Natalie Gamble, regulations, UK surrogacy
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