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ABA Conference in Las Vegas brings together fertility lawyers from across the globe

Monday, October 31st, 2011

Natalie and Helen were delighted to attend the American Bar Association’s Family and Assisted Reproductive Technologies (ART) conference in Las Vegas (26-29 October 2011).  The conference brought together the world’s leading experts in assisted reproduction and surrogacy law, with lawyers from many US states (where laws vary enormously), Germany, Italy, Canada, Australia, the Ukraine, India, Brazil and Greece.  Natalie was invited to speak about English law at a packed session, and was proud to represent the UK alongside leading fertility law experts from Germany, Italy, Australia and Canada.

The ABA conference comes at a key time, with the Hague Conference putting surrogacy on its agenda for international regulation, as well as increasing numbers of clients crossing borders for surrogacy and ART.  We were thrilled to meet so many professionals who, like us, understand and care passionately about helping people build families successfully.  It was abundantly clear that surrogacy lawyers across the globe need to play a key role, both in helping parents get the best legal protection and recognition possible (while national laws are so disastrously mismatched), and in advocating more widely at an international level as a voice for those conceiving in alternative ways.

Thank you to the American Bar Association for hosting such an inspiring international conference, which we know will be just the first step in building a strong international community of advocates for alternative families.

More information about international surrogacy law is available on our website and in particular check out our area for non-UK advisors and US attorneys.

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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

HFEA shift on donor payments will make little difference

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.

 

 

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UK Donor Link threatened with closure

Tuesday, August 23rd, 2011

We are dismayed and alarmed by news that funding may be withdrawn from UK Donor Link, an organisation which provides vital support to donor conceived people conceived in the UK before 1991.  Natalie Gamble has written to the Minister of Health Anne Milton to urge her to reconsider the decision, and Natalie’s letter is reproduced below:

Dear Minister

I am writing as a specialist fertility lawyer, responsible for representing many families created through donor conception.  I understand that the public funding provided to UK Donor Link since 2003 may be withdrawn from October, and that as a result UK Donor Link has already had to close its doors to new registrants and is threatened with closure from October.

I urge you to ensure that funding for UK Donor Link continues.  UK Donor Link provides a critical role in the provision of information to donor conceived people, and is the only organisation to offer support to adults conceived with donated eggs or sperm before the Human Fertilisation and Embryology Authority’s Register of Information was established in August 1991. 

Ensuring that donor conceived people have access to information about their genetic heritage  has been a clear foundation of government policy in relation to donor conception consistently over the past decade.  The policy reflects the growing and universally accepted understanding of the importance of openness and availability of information to donor conceived people, and followed a decision of the High Court as to UK law’s compliance with human rights legislation.

In 2002, the English High Court heard a landmark case (R. (on the application of Rose) v Secretary of State for Health) which established that if donor conceived people were denied rights to access information about their genetic heritage this engaged their human rights under article 8.  Mr Justice Scott Baker held that: 

“Article 8 is engaged both with regard to identifying and non-identifying information, albeit in this case the identity of the donors is not directly sought. What is wanted is non-identifying information and a voluntary contact register. I do emphasise, lest there be any doubt about it, that the fact that Article 8 is engaged is far from saying that there is a breach of it. That question, which may fall to be decided on a further occasion, involves consideration of other matters and may depend on any future action taken by the Secretary of State.”

In response to this case, two things happened: 

1. Parliament changed the law in respect of information about donor conception for people conceived in the UK since 1991 whose information was kept on the HFEA’s Register of Information.  Under the Human Fertilisation and Embryology Authority (Disclosure of Donor Information) Regulations 2004/1511 (which came into force on 1 April 2005) newly registered egg and sperm donors had to agree to being identifiable to their offspring once they reached the age of 18; and donors who were already registered (who, other than in limited circumstances, could not continue to donate on an anonymous basis) were given the opportunity to re-register as identifiable.

 2. UK Donor Link was established in 2003, with the support of public funding, in order to enable donor conceived people conceived in the UK before 1991 (whose details were not kept on the HFEA’s Register of Information) to make contact with genetic relatives through DNA testing and other methods of matching.

As a result of these actions, the question of whether the existing law breached article 8 of the Human Rights Act 1998 (justifying a declaration of incompatibility) did not need to be determined by the court.

The action taken by the government was in response to the High Court’s judgment, and represented a clear acknowledgement of the importance of providing access to information for donor conceived people.  The policy encompassed people conceived both before and after 1991 (although acknowledging the different means available for accessing information in each case).  This is inevitable given that, since human rights issues were engaged, they affected people irrespective of the whether they were conceived before or after 1 August 1991.

In 2008, additional steps were taken through the Human Fertilisation and Embryology Act 2008 (following rigorous Parliamentary debate) which further extended the rights of donor conceived people to information about their genetic heritage.  Section 31 of the Human Fertilisation and Embryology Act 2008 allows all donor conceived people whose details are kept on the HFEA Register of Information to have the opportunity to contact genetic siblings in adulthood, thereby extending access to information on the register.  Section 31ZF of the HFEA 2008 also made explicit provision allowing the HFEA to run or to fund a ‘voluntary contact register’ (in practice UK Donor Link) to support people conceived before 1 August 1991.  This therefore represents a recent Parliamentary endorsement of support for UK Donor Link, at the level of primary legislation.

I know that others have written to you emphasising the importance of UK Donor Link and the excellent work that it does for donor conceived people conceived in the UK before 1 August 1991.  In addition, I urge you to consider the legal context of support for donor conceived people in the UK, and the potential human rights implications of any withdrawal of funding.

Yours sincerely, Natalie Gamble

Further information about donor conception law in the UK is available on our website.

If you would like to add your support and write to the Minister of Health, her details are Anne Milton, Public Health Minister, Department of Health, Richmond House, 79 Whitehall, London SW1A 2NS.

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NGDT wants to hear donors’ voices

Tuesday, August 16th, 2011

The National Gamete Donation Trust (NGDT) are running a Donor Satisfaction Survey on the back of some poor feedback from prospective egg and sperm donors.  They asked for our support to get the issues addressed, and Kriss Fearon from the NGDT has written the following article for our blog.  If you are a donor, please do take part in the NGDT survey and have your voice heard: 

What would you think if you approached someone asking if you could donate a large and very personal gift, and your message was ignored, or answered weeks or months later? If, when you went to see them to talk about the gift, they left you waiting and with the distinct impression they didn’t think the gift was important? Would you carry on trying – or assume they weren’t interested, and go somewhere else?

This is the experience some egg and sperm donors have when they approach a clinic.  

The NGDT works with donors on a daily basis and hears directly from them about their experience of donation. Too often the feedback is not good, and yet some small changes in the way donors are treated could produce some big improvements. 

To carry weight with the people who can make a difference, the Trust needs to prove that changes are necessary. That’s why we are running a survey: to gather evidence of what works and what doesn’t work. This will be the basis for making recommendations on how to treat donors through the whole process of donation, from information-gathering at the beginning to sharing the outcome at the end of the cycle. 

The NGDT are targeting donors at two stages: first, as enquirers, and second, after a donor has completed their donation cycle. It’s important that donors are treated with respect; it’s also important that those who enquire but do not donate are treated well. People think really carefully before they make that first enquiry. It’s often prompted by the infertility of a close friend or family member, so there’s a big emotional investment. The minimum they should receive for this unpaid act of generosity is to be treated courteously.  

Why does this matter? For the same reason that poor service matters anywhere else: reputation. Donors talk to their friends and family, who in turn share with their friendship groups. They talk to the media. And, most importantly, prospective donors trust current donors to give them an honest picture of what to expect. The longer-term impact of one person’s bad experience can deter others from ever looking into it. Good donor care is good practice, but it is also an essential recruitment tool.

When you’ve known people with fertility problems finally achieve their much loved and hoped-for child, it is hard to understand why the people whose precious gift made such a difference are sometimes treated so disappointingly. That must change. 

http://ngdt.co.uk/donor-satisfaction-survey 

For more information about the National Gamete Donation Trust, visit their website at http://www.ngdt.co.uk/

There is also more information about the law for egg and sperm donors on our website.

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Times article on unregulated fertility sites quotes Natalie Gamble

Monday, July 19th, 2010

By Mark Bridge, The Times, Saturday 17 July 2010

Shadowy world of web’s unregulated fertility sites

Unregulated “fertility” websites that put their members in touch with sperm donors for a fee are exploiting vulnerable women and risking users’ health and finances, the Human Fertilisation and Embryology Authority (HFEA) has warned.

An investigation by The Times this week also found that such sites, which enable people including single women and lesbian couples to obtain sperm outside of the regulated market, are being used by men searching for nostrings unprotected sex. The HFEA believes that the sites’ role as facilitator may in fact constitute illegal “procurement” of sperm, and it is taking legal action against one website to close it down. A spokesman said: “If you use a site that does not direct you to a licensed clinic, you put yourself at risk that the sample you receive is neither safe nor screened and that the donor is not who they say they are.” The regulator also warns that donors who donate sperm via these sites rather than at licensed clinics will be the legal fathers of any children born to single women or unmarried couples and may be liable for child support.

Natalie Gamble, of Gamble and Ghevaert, a firm of solicitors that specialises in fertility law, said that the legality of the sites was a grey area. “What is illegal is procurement of gametes [sperm and eggs]. It comes down to the definition of what procurement is. Putting sperm in the post would seem to be clear. Less clear is helping individuals to make contact with one another.”

Membership of the websites, such as Co-ParentMatch.com and Feeling-Broody.com, costs about £10 to £15 a month. Dr Allan Pacey, senior lecturer in andrology at the University of Sheffield, claimed: “They’re in it purely for ‘If a man wants to impregnate the South East… he will be in poor sexual health’ money. It’s blatant profiteering.” He added that the sites profited from the relative expense of licensed clinics which charge about £800 for frozen sperm and one insemination cycle and from a shortage of sperm at clinics now that children born to donor sperm are allowed to contact their natural father when they are 18.

The website of Fertility 1st, which the HFEA is taking legal action against, states that customers should budget £150 for sperm to be couriered. The other sites leave such arrangements up to the donor and recipient, who might decide that his sperm should be delivered to her home, or that he should visit to “produce”, or have sex with her. Whatever the arrangement, Dr Pacey cautioned that sperm obtained using the sites is not adequately screened, so puts the recipient at risk of blood-borne and sexually transmitted diseases, including HIV. It may also carry genetic disorders such as Down’s syndrome. He says that the risk was even greater if, as our investigation suggests, some donors have predatory intent. “If a man wants to impregnate the South East, that ups the risk that he will be in poor sexual health.” He added: “A licensed clinic will run tests before taking samples and again six months after the last sample was taken and frozen. Sperm can only be used after this final check.”

Seyi Joseph, of FeelingBroody.com, said that her site only covered its costs. She added that it has links to documents that explain the rules on legal paternity. She advises that donors be tested for a range of diseases. Nigel Woodforth, of Fertility 1st, said that donors at his site must take regular health tests. He added that donors at the website do not give identifying details to the recipient, and that their records are destroyed after their membership expires. Co-ParentMatch.com did not return our calls.

Time spent undercover on unregulated websites revealed a sad world frequented by men eager to “help” vulnerable women. When I joined one site under the alias of luciex, or Lucy, a 29-year-old nurse, I was contacted by a queue of donors keen to offer “NI”shorthand for natural insemination, as in sex (Mark Bridge writes). As Lucy I signed on at Co-ParentMatch.com, which claims to be the “No 1. Leading website of its kind”a “regulated environment” that uses the slogan: “After all, there’s no time to waste, the biological clock is ticking…” Having uploaded a picture of an attractive brunette and paid £9.95 a month, I was contacted by, among others, men claiming to be a 30-year-old studio manager and a “ready and able!” 58-year-old American “peacebuilder”. Profile photographs showed mainly thirtysomething and middle-aged men, some engaged in manly outdoor pursuits, others dressed for a hot dateone in a crisp white jacket. The tone of conversation was hardly clinical. One man sent “Lucy” a blunt “I am from Manchester and available for NI if you can travel when you are ovulating.” He said that he was a married man and donated to overcome both the national shortage of sperm and narrow-minded attitudes to lesbian parents.

Another tried charm, writing: “Hello Lucie! You reallly [sic] look so gorgeous and I would be happy to donate my sperm so you can become pregnant [...]” Meanwhile, a man whose photo loosely resembled AliG wrote: “Hi how u doin?My names [...] im 30 from London would you like to chat? x”, adding his mobile phone number. When Lucy failed to respond he asked: “Hi Lucie how r u hun? Good i hope… What did u decide to do? Id like to help you become a mother x” Most, when asked, said that they were willing to donate by natural or artificial means, so came across as opportunists rather than full-on predators. Some offered meaningless reassurances about their sexual health. One wrote: “I have also been checked for STDs two weeks ago, in case you wondered.”

Not one asked Lucy why a single woman of only 29 would want to conceive with donor sperm or how she intended to bring up the child, although three professed some interest in a co-parent role. On the other hand, two said that they would be unwilling to take on parental responsibility. One wrote: “I am a donor only and cannot offer financial or parenting support.” It is illegal for donors to charge, and none of the men who made contact requested payment. One did say: “Expenses may be travel costs or hotel costs etc if donation was done on neutral ground.”

Laura Witjens, left, of the National Gamete Donation Trust (NGDT), says that the casual nature of agreements on expenses leaves them open to abuse. “It is common for guys to insist on natural insemination so ‘pay me and sleep with me’, she said, adding: “Some even sent me photos of themselves ‘donating’. It was shocking, and I’m Dutch, so that’s saying something.”

In spite of this dubious donor-base, the sites manage to entice women “and the odd sincere gentleman”, Ms Witjens said, in part by presenting a clinical façade, using stock photographs of babies to play on emotions. I have spoken to several women who have used the sites who were angry at first when I criticised them. They said, ‘Why make it difficult for people to conceive?’ But they were surprised and grateful when I explained the dangers and the legalities.”

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Going solo: fertility treatment options and the law for women starting a family on their own

Friday, April 2nd, 2010

Published in BioNews 551, 29 March 2010

It’s tough to get life sorted as a modern woman. Education, work and finances now commonly take women well into their thirties before they decide to start a family, and not everyone manages to find the right partner by the time they get there. It is perhaps not surprising that increasing numbers of women are making the decision to start a family independently. ‘Solo’ mothers (as distinct from single mothers) are those who make a positive decision to go it alone and to conceive without a partner – but as well as the social and financial implications of this choice, there are a number of legal implications which all solo mothers in the UK ought to give careful consideration to.

One option for solo mothers is to conceive through sperm donation at a licensed clinic. The sperm is screened, tested and quarantined, ensuring the safety of mother and child and the quality of the sperm. A range of treatments are available, including intra-uterine insemination (IUI) and IVF (in vitro fertilisation) and potentially even treatment with donor eggs, depending on the woman’s age and medical history, and assessed with medical guidance from the clinic involved.

One of the biggest longer term advantages for many solo mothers is the parental autonomy and legal clarity this option brings: the status and responsibilities of the donor are excluded by law, and in practice there is no other parent to manage. Of course, this has its downside too, and it is important for a solo mum to ensure she will have all the practical support she will need as chief carer and breadwinner, and to make careful provision in her will to ensure her child is fully protected if anything happens to her.

Children conceived through sperm donation at licensed clinics in the UK now have the right to find out the donor’s identity (and possibly to make contact with genetic half siblings) once they reach the age of 18, which means that their genetic heritage is available to them if they wish to find out more. For many solo mother families, this offers a good balance: parental autonomy for mum during childhood, but the option for the child to contact the donor and siblings in later life.

In years gone by, it was difficult for single women to obtain treatment with donor sperm at a licensed clinic. Until 2009, the law provided that fertility clinics had to consider the welfare of a child before offering treatment, ‘including the need of the child for a father’ – for many years many clinics interpreted this as a bar on treating single women. Clinical practice evolved over time to a more flexible approach, and in 2009 the law was updated so that clinics now have to consider the child’s need for ‘supportive parenting’. This was explicitly worded to be more inclusive of single women (and lesbian couples) and means that single women should now not have any difficulty accessing licensed treatment, albeit that donor sperm may be in short supply in some places and that treatment may need to be privately funded.

Another option is known donation or co-parenting. Some solo mothers ‘team up’ with a man who is willing to act as a known donor or co-parent, often gay or single. Every situation is different, and the range of involvement from the biological father after conception can stretch from none to full shared parenting. Different treatment options are also available, including natural conception, artificial insemination at home and IUI or IVF at a licensed clinic.

It is important in such situations to think through and manage the longer term and legal issues from the outset. Unless conception occurs at a licensed clinic, the donor will be the child’s legal father and will be both legally and financially responsible for the child. If conception occurs at a licensed clinic, it may be possible to register the donor with the Human Fertilisation and Embryology Authority (HFEA) and thereby exclude his parental status, but care needs to be taken (and it may be necessary to put in place additional legal documentation) if he intends to have ongoing parental involvement after the birth. It is a common misconception that known donors to single women always have their legal status excluded if they donate through a licensed clinic.

Where there is a clear intent that the donor will be known and treated as the child’s father, both sides should be clear about the legal issues before going ahead. The decision as to whether the father is named on the birth certificate is significant as this will dictate how much decision-making power the father has in his child’s upbringing. It is also important to think through the issue of financial responsibility and how this will be managed, as well as the intention for sharing care in practice both in the early months and in the longer term. In many cases, it is appropriate to put in place a donor or co-parenting agreement to cover these sorts of issues, to provide clarity and to help flush out any potential problems before they arise. An agreement does not bind the family court – since the parents cannot stop the court doing what it thinks is in a child’s best interests – but it will be taken into account if a dispute does arise.

It is important to take care if the solo mum conceives while she is still legally married or in a civil partnership. Problems can arise for women who make the decision to start a family on their way out of a marriage or civil partnership, and are keen to get going as soon as possible before their divorce/dissolution is finalised. The law provides that any child artificially conceived by a married woman or one in a civil partnership (and this includes home insemination) will be treated as the legal child of her husband or civil partner. In most cases this is the opposite of what is intended, making it critical to take legal advice before conception.

Women are increasingly making reproductive choices independently, typically in their thirties and forties and often simply to avoid missing out on motherhood before it is too late. The decision is often one which has been made over a considerable period of time, with care, thought and courage. Such women have more complex issues to grapple with than many other fertility patients, both in their conception choices and their longer term parenting issues, and it is important for them to consider the options and the law carefully from the very start.

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