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Consultant obstetricians who reviewed current practice in UK hospitals said the lack of rules put mothers and children at risk. Celia Burrell, consultant obstetrician at Barking, Havering and Redbridge University Hospital NHS Trust said: “We are calling for additional legislation and guidelines to prevent women and babies being exploited, provide safeguards for children and guide professionals.

The review published in the The Obstetrician and Gynaecologist said that staff should consult hospital lawyers and risk management teams before taking a decision to discharge a baby separately from the mother who gave birth to the child. Researchers said they expected the number to increase, following laws introduced in 2010 which give same sex and unmarried couples the same legal rights as married hetrosexual couples to apply for parental orders, after a child is born.

Dr Burrell said current laws were “precarious”, because legislation varies so much around the world. Last month, a new precedent was set in the Republic of Ireland when the genetic mother was put on the child’s birth certificate. In 2011, a surrogate mother in the UK won the legal right to keep her child after learning that the would-be parents were violent.

In March, a surrogate mother in the United States fled across the country to give birth and save her child after the parents to be wanted to have the child aborted because disabilities had been found. Researchers said there are currently no UK guidelines providing advice for surrogates, would-be parents or healthcare professionals, nor is data collected to establish how common the practice is.

Researchers said the lack of guidance left healthcare professionals struggling with many ethical and legal dilemmas. Since Britain’s first official surrogate birth, in 1985, laws have limited payments to cover only what is described as “reasonable expenses”, such as loss of income.

Estimates suggest that, since then about 800 children have been born in this country of such arrangements, with “expenses” payments averaging about £15,000. Exact figures are unknown, because many arrangements proceed without any medical or legal input.

In 2011, a British judge allowed a couple to keep their child, despite the fact that they made higher payments to a couple in the United States, where there is no ceiling on amounts. In making the ruling, he went further, saying that the welfare of the child was the paramount consideration, and future cases would be rejected only in the “clearest case of the abuse of public policy”.

Article: 19th April 2013 www.telegraph.co.uk

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A woman in her 50s will give birth to her own children after becoming a surrogate mother for her infertile daughter. Cathy Donnelly, 58, is six months pregnant and will welcome her seventh grandchild into the world when she gives birth to her - before daughter Shannon Fischer raises the baby.

Mrs Fischer and her husband Jamie had been trying for two years when they discovered they couldn’t conceive due to scarring in her uterus. So Mrs Donnelly mother of three and a grandmother of six, volunteered to be a surrogate mother for her daughter.

Mrs Fischer said: 'The day I came home from my surgery mum said "I'll do it". She didn't hesitate.' Mrs Donnelly, from London in Ontario, Canada, said: 'I felt bad for them - I just thought what’s nine months of my life? They are going to have a child for the rest of theirs? It's not like I'm busy doing anything.'

He said: 'Usually it’s a close friend or a sister that acts as the gestational carrier - women who are over 45-years-old are not normally in good enough health. 'Pregnancy for older women is much riskier. The most common complications are high blood pressure, gestational diabetes and premature child birth.'

But they were risks Mrs Donnelly was willing to accept and while she admits her pregnancy hasn’t been easy, she has had no complications so far. 'It was long process and involved a heavy dose of fertility drugs for both of us but in the end it all paid off.

'I was standing in line for a coffee when I got a call from my doctor confirming I was pregnant. I was just bawling - people must have thought someone close to me died. 'But it has been challenging. Now I’m showing I make sure people aren’t staring or looking at me because they’re probably thinking ‘look at that old lady.'

Mrs Donnelly said she did question whether she was doing the right thing and if everything would work out okay until she started to feel the baby move. Now her only concerns are about how she will feel once she has given birth. 'I don't know if I'll feel like I've lost her, I don't know how I'm going to feel,' Mrs Donnelly said.

Shannon plans to name her daughter Zoey Hope Catherine after her mother. And for her the whole experience has made her cherish their mother-daughter relationship even more. She said: 'It just changes your relationship 360 degrees. We were close before but it’s just on a whole new level. I want to be like she is to my own daughter, that caring and willing to do stuff for her. Article: 16th November 2012 www.dailymail.co.uk

Read more about surrogacy and egg donation

We are pleased to say that the government announced yesterday that they would be introducing adoption leave (equivalent to maternity leave) rights for parents through surrogacy. After campaigning for more than five years, Natalie Gamble Associates are thrilled ‘Some days I feel very proud of what we do here, and today is one of those days’

Until now, parents whose biological child is carried by another woman have had no rights to time off work when their new baby arrives, unlike parents who give birth or who adopt a child. This has been grossly unfair, and resulted in parents through surrogacy having to quit their jobs or go back to work if their employer does not (or cannot) give leave on a discretionary basis.

The new rights will be introduced as part of the government’s maternity leave and adoption leave reforms, expected to come into force in 2015. Although the full detail has yet to be confirmed, we know that parents through surrogacy will be entitled to two antenatal appointments during the pregnancy, and adoption leave after the birth. This will be available to all couples eligible to apply for a parental order, including heterosexual parents and gay dads. Surrogate mothers will also retain their right to maternity leave to recover from giving birth.

More information is available in the government’s response to the consultation on modern workplaces which says:

We propose that intended parents in surrogacy cases who satisfy the criteria for a Parental Order and intend to apply, or have applied, to a court for a Parental Order will be entitled to leave and pay on the same basis as adopters who are eligible for statutory adoption leave and pay, subject to the qualifying conditions and evidential requirements. In addition, both intended parents will be entitled to take unpaid time off to attend two antenatal appointments with the surrogate mother carrying their child.

What is so exciting about the change, as well as the practical legal rights it will introduce for new parents, is that this is the very first time in UK legal history that parents through surrogacy have been recognised as having any rights in advance of the birth of their child. This is a very significant recognition that surrogacy is real and here to stay, and hopefully a first step towards wider reform of our surrogacy laws.

Read more information about surrogacy law and more about Natalie Gamble Associates' campaigning work.

Article: 15th November 2012 www.nataliegambleassociates.co.uk

Yesterday's ITV Daybreak featured Kyle Casson, a single dad who Natalie Gamble Associates are proud to be working with on his journey to become the first single parent through surrogacy in the UK. Well done to Kyle for speaking out so bravely, and for being such a great a champion for solo dads.

Kyle spoke characterically warmly about his plans to be a father. He has always wanted children, and wants to do it in his twenties (with active grandparents) rather than waiting for a partner who may not come along. He has planned things carefully, is financially secure, has the enthusiastic support of his family, and has a surrogate who wants to help him. You can see Kyle talking about his story on ITV Daybreak here.

So what does the law say?
The law in the UK has never made it illegal to enter into a surrogacy arrangement as a single father. But it doesn’t make it easy either. Most parents through surrogacy (including gay dads and unmarried couples) can apply for a ‘parental order’ after their child is born. This is an order made by the family court which gives the intended parents a new birth certificate and extinguishes the responsibilities of the surrogate mother. Single parents are not, however, eligible to apply.

This means it is perfectly legal for Kyle to have a child through surrogacy in the UK, but the normal solution for families created through surrogacy (designed to give lifelong security and certainty for the child) is not available. He will have to get creative with using law designed for other purposes to secure his family and resolve the position of his surrogate – adoption being the best alternative to a parental order if the family court will agree to help.

Natalie Gamble Associates (NGA) call to action
On behalf of Kyle and the increasing numbers of solo prospective dads NGA are advising (some going abroad for surrogacy, others entering into co-parenting arrangements. NGA call for parental orders to be made available to solo parents. The law has already been extended, in 2008, to allow gay dads and unmarried couples to apply, and it is now time to allow single parents to apply too. This would bring the law into line with adoption law, which allows single parents to become adopters, and with reproductive law for women which was specifically amended in 2008 to allow solo mums to conceive through donor insemination.

NGA frequently see heartbreaking cases caused by the denial of surrogacy to single parents. A change to the law would benefit not only prospective solo dads like Kyle, but also single women who have survived cancer and need the help of a surrogate to carry their child, and widowed fathers who want to use embryos in storage, just as widowed mothers are able to do.

And what do we say to people (like the lady on Daybreak with Kyle this morning) who say that such solo parents who want to have children are selfish? Well, wanting to be a parent is something most human beings experience, so it comes down to whether children suffer harm if raised without a mother and a father. This is an old question for non-traditional families, and the answer (backed by long research, including by the Centre for Family Research at Cambridge University) is that children in deliberately created non-traditional families (including solo parent families) have good outcomes, and are in a very different position from children whose parents have separated. It is the quality of the relationships which matters, and not the gender or number of the parents.

Article source: 5th November 2012 www.nataliegambleassociates.co.uk

Read more about surrogacy and the law

Indian surrogacy is a hot media topic, with several stories over the past week about couples being stuck in India waiting for British passports for their biological children. As far as we are concerned, this isn’t really news – it is the shared experience of every British parent who has had a child through surrogacy in India, and something we deal with on a daily basis.

A surrogacy industry has grown rapidly in India over the past few years, attracting Western intended parents with limited surrogacy options at home. Although the Indian parliament is considering introducing Indian surrogacy laws (one feature of the proposed Bill being to restrict surrogacy for foreign parents), there is widespread doubt about when or if these laws will ever be passed. With no law to regulate Indian surrogacy as things stand, a profitable surrogacy market has sprung up. Clinics rely on Indian contract law to draw up binding agreements between surrogates and intended parents, and registrars facilitate naming intended parents on Indian birth certificates. All together, it adds up to an affordable but unregulated way of having a child for infertile and gay couples.

But Indian surrogacy is not as simple as it seems for British intended parents. UK law says that the surrogate is the mother of the child and, if she is married, her husband is the father, and these rules apply no matter where in the world the child is conceived. In practice this means that getting named on an Indian birth certificate is false comfort, since the Indian birth certificate will not be recognised for any UK legal purposes.

Getting home is just the first hurdle. Most children born to British parents through surrogacy in India are born ‘stateless’ – they have no nationality anywhere in the world – because of the mismatched laws on parenthood. British parents have to apply to the Home Office for their child to be registered as a British citizen on a discretionary basis. Since the process takes many months, parents must routinely be prepared for a long stay in a foreign country with their newborn child.

....Read more of this article

Article: 7th June by Natalie Gamble Associates.

Following prominent Indian surrogacy stories in the Telegraph and Evening Standard, Natalie was interviewed on BBC Radio this afternoon to explain the law.

In the absence of regulation, a commercial surrogacy industry in India has boomed over the last few years, with many Indian fertility clinics now offering surrogacy packages to foreign intended parents at a cost of around £20,000. Indian law allows intended parents to enter into a binding contract with a surrogate mother, and Indian officials register the intended parents on the Indian birth certificate.

But the law is not as simple as it seems if you are a British parent. For UK legal purposes, the parents of a child born through surrogacy are the surrogate mother and, if she is married, her husband. Regardless of what the Indian birth certificate says, you will not be recognised as parents and this means that your child may well be born ’stateless’ without any right to a passport anywhere in the world. You will also have no status as the parents of your child when you come back to the UK.

There are solutions – a discretionary application to the British High Commission to give a British passport, and an application to the family court for a parental order which ultimately gives a British birth certificate. However, it is important to be well prepared, and to be very careful about the ethics and safety of what you are doing, given the lack of regulation in India.

Despite the sudden media coverage, none of these issues are new. In a landmark case Re X and Y in 2008, the High Court warned of the dangers of international surrogacy after twins born through a Ukrainian surrogacy arrangement were born ‘marooned stateless and parentless’ by the conflict between UK and Ukrainian law. This was the very first UK case to ratify a foreign surrogacy arrangement, and it has been followed by many others over the past four years. Exactly the same issues apply in Indian surrogacy cases, of which we have dealt with many. No parental orders have yet been refused, although the court does look at every situation carefully to ensure there is no exploitation and to protect the welfare of the child.

You can find out more from our website about international surrogacy law.

Article: 2nd June 2012 www.nataliegambleassociates.co.uk

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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 www.nataliegambleassociates.co.uk

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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.

Article: 13th December 2011 www.nataliegambleassociates.co.uk

Read more about surrogacy in the UK and internationally

Cathleen Hachey’s first try as a surrogate mother took a heartbreaking turn when she was abandoned via text message last spring, 27 weeks into the pregnancy she’d initiated to help another couple start a family.

The young New Brunswick stay-at-home mom was carrying twins for a British couple. But three months before Hachey’s due date, the couple declared their marriage had ended and they would not be coming for the babies.

Hachey, 20, who was already the mother of a 1- and 2-year-old, delivered the twins — a boy and a girl — on June 28. She was able to find the twins an adoptive home, but experts in the field say the episode is a lesson on the need for better safeguards for both surrogate mothers and the intended parents.

Without a lawyer or a fertility doctor to advise her, Hachey was left vulnerable and outside Canada’s fertility laws. “Here’s a lovely, trusting young woman who should have taken care of herself,” says Sherry Levitan, a Toronto-based fertility lawyer. “The law is there for a reason.”

Hachey, who lives in Bathurst, N.B., tried to do what experts say all surrogate mothers should do before she agreed to carry a child for the couple in Hertfordshire, England, whom she met through the website Surrogate Mothers Online.

She spent about six months getting to know them, speaking with them daily by phone. She met the pair when they flew to New Brunswick in November. The three signed a surrogacy contract prepared by the couple that declared them the child’s legal parents and granted Hachey $200 per month for expenses related to her pregnancy.

The trio decided Hachey would be a “traditional” surrogate: she would use her own egg and the husband’s sperm to conceive the child because the wife suffered from polycystic ovarian syndrome and was unable to conceive or carry a baby.

Surrogacy advocates frown upon this approach, and few fertility clinics will agree to inseminate women who choose it. So Hachey performed an “at home” insemination using a medical syringe and semen from a cup.

“Traditional surrogacy is too fraught with issues,” says Toronto fertility lawyer Nancy Lam. The child is genetically connected to the surrogate, unlike in a much more common “gestational” surrogacy, in which the surrogate mother carries a baby conceived with a donated egg and has no genetic connection to the child she delivers.

The traditional surrogacy complicated Hachey’s situation, leaving her even more vulnerable when the couple backed out 27 weeks into her pregnancy. The intended mother sent Hachey a text message stating the couple had separated and she wouldn’t be taking the unborn boy and girl because she felt that as a single mother she couldn’t care for twins.

“It said she mentally couldn’t handle herself right now,” Hachey recalls, “so she didn’t think she can handle two other human beings.” The expectant mother was stunned: “They were my biological children so they were my biological problem.”

With the help of a friend, Hachey did find a Nova Scotia couple who had been waiting several years to adopt and were overjoyed to take the twins. “It was hard,” she says. “If I was in a better position, I would have kept them.”

But she had to care for her two children alone because her fiancé left 18 weeks into her surrogate pregnancy. Faced with the prospect of sole breadwinner for a family of four, he said he couldn’t cope with the financial stress. They have since reunited.

The Star was not able to reach the intended parents in England.

Canada’s Assisted Human Reproduction Act of 2004 sets out strict guidelines for surrogacy. It is illegal to offer to pay a surrogate or for donated eggs, sperm or embryos. It is also illegal to accept payment for arranging a surrogacy. The penalty is a maximum fine of $500,000, 10 years in jail or both. As well, surrogates must be 21 or older.

Levitan says a fertility doctor — had Hachey consulted one — would have recommended that she wait until she turned 21 to become a surrogate. Assisted Human Reproduction Canada (AHRC), the federal body in charge of Canada’s fertility laws, has received 20 complaints since it was formed in 2004, mainly over payment for surrogacy or the purchase of eggs or sperm.

“Most such issues are resolved through outreach and cooperation at the initial stage of its review,” says AHRC spokeswoman Yvette Lebrun-Campbell. “Four allegations have involved the police, and no charges have been laid to date.” When there is a complaint, the agency will review it and try to resolve the issue without involving the police.

“When all appropriate efforts are unsuccessful, the matter may be referred to a law enforcement agency, including the RCMP, for criminal investigation,” says Lebrun-Campbell. “Or AHRC may notify any interested authority, such as a disciplinary body, where there are reasonable grounds to believe the person may have acted in breach of any professional code of conduct.”

After the Assisted Human Reproduction Act was passed seven years ago, Quebec challenged Ottawa’s right to control all areas of reproductive assistance and technology. It launched a constitutional challenge, arguing that parts of the act fall within provincial jurisdiction and should not be controlled by the federal government.

Last December, the federal Supreme Court ruled that provinces do have exclusive authority to regulate fertility clinics, license doctors, reimburse sperm and egg donors for their expenses, and decide how many embryos to implant. The federal government, however, still has power to ban paid surrogacy, the use of underage donors and the commercial trade of eggs, sperm and embryos.

The court’s ruling means the federal government is unable to license fertility doctors, explains Levitan, leaving intended parents and surrogate mothers largely dependent on lawyers to ensure they stay within fertility regulations.

“The problem is accountability,” she says. “It is not that easy for the agency to ensure compliance.” Hachey did not have a lawyer. The contract, drawn up by the couple, had nothing in it to protect her in the event of the couple separating.

She won’t let that happen again. “I’ll have my own lawyer. I’ll have a lot of stipulations in the contract to protect myself,” she says. She plans to start another surrogate pregnancy in January.

“If I could, I would do this as a lifelong job,” she says. “For people who need traditional surrogates, they’ve accepted that they can never have a baby. This is their last hope. Those are the people that I want to help

Article: 9th September 2011 parentcentral.ca

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So many clients tell us that this is the question they are asked when they tell their friends – and even their fertility doctors – that they are considering surrogacy. Is it true? Are surrogacy arrangements in the UK very risky, with the surrogate mother holding all the cards and having an absolute right to keep the baby? Do those who embark on surrogacy arrangements frequently end up with the surrogate mother keeping the child in practice?

It is certainly a widespread belief, and one which in the globalised world is an important factor which drives people abroad to surrogacy destinations like the USA, the Ukraine and India, where surrogacy arrangements are legally enforceable.

But the reality is that this is in fact incredibly rare in practice. To date, there have been only two reported cases in UK legal history of the court having to arbitrate between the intended parents and a surrogate mother where a surrogacy agreement has broken down. In only one of these cases was the surrogate allowed to keep the baby, since the UK courts (far from being obliged to uphold the status of the surrogate mother) in fact have flexible powers to determine what is in the child’s best interests where something does go wrong.

So why do surrogacy arrangements in the UK so rarely go wrong? Our experience of working with families in these situations tells us that it is because surrogacy is not entered into by parents or surrogates lightly, but with the benefit of enormous care, thought and respect. Often with the help and support of long established and experienced agencies like Surrogacy UK and COTS, we find that parents and surrogates invest heavily in building a strong foundation to their relationship, and treat it with significant value.

The reality of surrogacy in the UK is that arrangements far more often end up in a lifelong friendships than in custody disputes.

Article: 10th August 2011 www.nataliegambleassociates.co.uk

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