New surrogacy legislation in the UK came into force this week

October 3, 2013 20:27 by PrideAngelAdmin
The HFEA’s new Code of Practice, which comes into force this week, contains new guidance for UK fertility clinics dealing with surrogacy cases. The changes affect how clinics deal with the forms which allocate legal parenthood in surrogacy cases.

Cases where the surrogate is married or in a civil partnership

If the surrogate is married or in a civil partnership, she and her husband (or civil partner) will be the legal parents of the child. There may be some rare cases in which the surrogate’s spouse does not consent to the arrangement as a question of fact (for example if the couple are separated). However, in the vast majority of cases a surrogate’s spouse cannot simply opt out of becoming a legal parent by signing a withdrawal of consent form.

The HFEA gives new guidance making this clear, and instructions to clinics about how the paperwork should be completed.

Cases where the surrogate is not married

If the surrogate is legally single (or if her spouse genuinely does not consent), there is new guidance on what clinics should do. The HFEA no longer says that in these circumstances the child has no second legal parent. Instead, the new rules provide that there are choices to be made as to who can be named on the child’s first birth certificate with the surrogate mother (something which brings the HFEA guidance into line with the approach of the family courts and register offices).

In practice, there are three options and clinics will need to consider the alternatives carefully with patients before treatment proceeds:

1) Do nothing – the intended (biological) father will be the legal father and can be named on the birth certificate with the surrogate. No parenthood election forms need be signed.

2) Nominate the intended mother as the other parent. The clinic will need to ensure that the new the parenthood election forms for surrogacy (Forms SWP and SPP) are signed by both women before conception. This enables the two women to be named on the birth certificate together when the child is born.

3) Nominate a non-biological father as the father (e.g. the other dad in a gay couple or, probably more rarely, an intended father in a case where a couple is conceiving with the intended mother’s eggs and donor sperm). The clinic will need to ensure the parenthood election forms (SWP and SPP) are signed by the nominated non-biological father and the surrogate mother before conception. The non-biological dad can then be registered on the birth certificate with the surrogate.

The parenthood election forms are critical documents which patients will need when they go and register their child’s birth, so it is important that licensed centres provide patients with a copy and keep a copy on file. They must be signed before artificial insemination or embryo transfer to be legally effective.

Intended parents will still need to apply for a parental order after their child is born to secure their joint parentage and to extinguish their surrogate’s legal responsibilites. This will, in the long run, give the intended parents a birth certificate naming them both as the parents - the new HFEA rules only deal with the interim position before this process is complete. It is therefore also important that licensed centres are familiar with parental orders, or otherwise make sure their patients have legal advice.

There is more information and FAQs from the HFEA here and more information about legal parenthood after surrogacy on our website. We have assisted the HFEA with its new guidance, and have worked with hundreds of families created through surrogacy. We can offer training to licensed centres, and advice and support to families with navigating these new rules.

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Surrogacy laws in the UK are unfair says MP today in Parliament

April 18, 2012 18:21 by PrideAngelAdmin
surrogacy John Healey MP (the Shadow Secretary of State for Health) spoke clearly and compellingly in the House of Commons this afternoon about the need for proper maternity leave and pay for mothers through surrogacy in the UK (you can watch John Healey’s speech in full here). Introducing a Ten Minute Rule motion, he told Parliament about his constituents, surrogate mother Amy Bellamy and her cousin Jane Kassim. They came to see him at his surgery having been “stunned” to discover that Jane had no legal right to maternity leave or maternity pay to care for the twin daughters Amy had carried for her after Jane was told at 15 that she could never bear children.

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

Problems with UK surrogacy law
As well as talking about maternity rights as the urgent first step needed, John highlighted some of the wider problems with UK surrogacy law which need addressing, including:
- the parents not being named on their child’s birth certificate,
- problems dealing with the child’s medical treatment,
- delays in the court system to reassign parenthood, and
- the absolute veto the surrogate and her husband hold, no matter what is in the child’s best interests.

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

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

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

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

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

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

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

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

Article: 17th April 2012

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Surrogacy law in the UK - Is change overdue?

February 9, 2011 23:03 by PrideAngelAdmin
International and UK regulations have simply not kept up with the reality of surrogacy

Determining parenthood is a complex business. When paternity tests revealed that the child Stephen Quinn had raised as his own was in fact the biological offspring of David Blunkett, Quinn attracted palpable sympathy with his declaration: "I will not draw a distinction between biological and non-biological – we are not buying Persil or Daz."

But the complexity of determining paternity pales in comparison to the question of maternity. In the rapidly expanding world of surrogacy births, up to three women can have competing claims to be mother of a newborn child: the birth mother, the egg donor, and the intended parent (or "commissioning mother", as she is prosaically called). The one thing upon which the wildly opposed different groups agree is the fact that the courts – increasingly called on when surrogacy agreements break down – do not have the right tools to resolve them.

The most recent example came in a surrogacy dispute that was decided last month in Birmingham county court. A couple who could not have children had met a surrogate mother in an internet chatroom. She was inseminated with the man's sperm and agreed to hand over the child after birth. In a not uncommon outcome for informal surrogacy agreements, she changed her mind during the course of the pregnancy as her attachment to the child grew.

And in another fact not unrepresentative of wider trends, the case was complicated by the fact that both the would-be parents and the surrogate were avid users of surrogacy websites and chat-rooms. The would-be parents had met another woman, alleged to be a prostitute, on a surrogacy website and allowed her to stay in their home. On her part, the surrogate had adopted a false persona online and deceived the couple to elicit information about them. Both incidents, the judge said, raised questions about the sound judgment of each side, a particular matter of concern for a court trying to determine which side would be more likely to provide the atmosphere of safety, love and guidance needed to raise a child.

It's hard to criticise the findings of the judge, Sir Jonathan Baker, in this case: he allowed the child to stay with the surrogate, finding separation from the woman who was still breastfeeding her to be the greater measure of harm. His view reflects the legal position in the UK, that "mother" is the label given to any woman who gives birth to a child, whether or not she is a genetic relation.

But the difficulty with even naming this woman is some indication of the problem that the law – and society – has with accepting the concept of surrogacy. Women who intend to end up with custody of a child conceived through surrogacy are sometimes called the "intended mother", or the "commissioning woman". When Nicole Kidman spoke of her newborn surrogate child, she referred to the woman as her "gestational carrier", a term that did little to improve surrogacy's public image.

Surrogacy is fighting an ethical battle on numerous fronts. Religious communities are mostly opposed to it. A more earthly concern held by many is with the increasing commercialisation and potential exploitation of surrogate mothers. Commercial payments are illegal in the UK, for good reason – surrogacy in India is reported to be at least a $2bn business, with vulnerable women being handled by agents who take the majority of fees paid by relatively wealthy foreign couples. In the US, where many states also allow payments for surrogacy, it is not uncommon for tens of thousands of dollars to be paid to women for both egg donation and surrogacy, something many UK experts regard as nothing short of the commoditisation of human life.

That is not to say that UK law has got it right. The 1990 Human Fertilisation and Embryology Act, which governs parenthood rules arising from surrogacy – with minor amendments in 2008 to include unmarried or same-sex couples – can be difficult to apply to the reality of modern surrogacy. In stark contrast with adoption, which requires the thorough – often painfully slow – vetting of parents, anyone can enter into a surrogacy arrangement abroad. Many people, including the lawyers I speak to who represent families facing the breakdown of such arrangements, struggle with the uncomfortable question of whether it can ever be in the best interests of a child to be conceived for the purpose of being removed from the woman who gave birth to that child, and what the long-term psychological and emotional consequences of that removal might be.

Yet automatic recognition of the surrogate as the legal mother can cause its own problems in the context of international surrogacy agreements. In 2008 a British couple who had paid £23,000 to a surrogate mother who bore them twins in Ukraine were at first unable to bring the children back to the UK, since they were not recognised as the legal parents. The parents won their legal battle after a year, but until then the twins were left "marooned, stateless and parentless", eliciting a warning from a high court judge that the law should be changed.

On the other hand, giving automatic recognition to the commissioning parents – a model adopted by India's new surrogacy law – creates dilemmas too. The idea of a contract that creates a binding obligation on surrogate mothers to relinquish all rights to a child after birth may seem several steps too far.

It is fair to say that most cases do not end in dispute. But even in those circumstances, the law has failed so far to provide a sensible balance between the rights of surrogate mothers and the women for whom they carry a baby. Currently only the former enjoy maternity rights and employment protection.

The net effect is that children are left vulnerable – a sad and ironic situation for a practice that already often stands accused of being in the interests of parents rather than the offspring they go to such lengths to create. As the judges on whom it falls to resolve these issues state with increasing concern, surrogacy – through lucrative international deals and burgeoning chatrooms – is here to stay. If the children it creates are to be protected, then change is long past its due date.

Article: 9th February 2011

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