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Scotland’s New IVF Rules To End Postcode Lottery

June 18, 2013 By Louisa Ghevaert

New criteria, designed to make access to fertility treatment fairer in Scotland, promises that women under 40 can have two cycles of IVF funded by the NHS. This follows further investment of £12 million over three years to drive down waiting times.

However, treatment will be limited to patients who are not obese, where neither partner smokes nor drinks alcohol before or during treatment.

The new guidance from the National Infertility Group also states that the couple should be in a stable, co-habiting relationship for at least two years before starting treatment. The group has since conceded, though, that this particular criteria may be difficult to police.

The new rules will effectively mean an end to Scotland’s IVF Postcode Lottery, with those areas already providing three cycles of IVF (currently half of all health boards in Scotland) similarly required to provide only two cycles in future.

The report reveals wide differences between boards in terms of waiting times. At the end of last year, these ranged from no waiting time in NHS Borders, to three to six months in NHS Orkney, Shetland and Western Isles, to a high of three years and eight months in Grampian.

Boards also often have different criteria dictating who is eligible for treatment. The guidance gives women a guaranteed maximum of two fresh cycles of IVF up to the age of 40.

The new guidelines also guarantee women aged 40 to 42 one full cycle of IVF if they meet extra criteria, which shows they would have a reasonable chance of becoming pregnant. From 31 March, 2015, all couples will start treatment within 12 months of being accepted for IVF.

The Scottish Health Minister, Mr Matheson, said: “Currently, the service and criteria offered to women vary across the country. This is not acceptable. For the first time, NHS provision of IVF will not vary, regardless of where you live.

“All patients in Scotland will have access to a more generous and fairer service than elsewhere in the UK.”

Opposition politicians welcomed moves to make access more equal, but questioned the drop in provision.

New rules include:

NHS IVF services are provided in centres in Aberdeen, Dundee, Edinburgh and Glasgow. The access recommendations for all couples from 1 July, 2013, are:

• Eligible patients up to the age of 40 may be offered up to two cycles of IVF where there is a reasonable expectation of a live birth.

• Both partners must be non-smoking for at least three months before treatment and continue to be non-smoking during treatment.

• Both partners must abstain from illegal and abusive substances.

• Both partners must be methadone-free for at least one year prior to treatment.

• Neither partner should drink alcohol prior to or during the period of treatment.

• Body mass index (BMI) of female partner must be above 18.5 and below 30.

• Neither partner to have undergone voluntary sterilisation, even if sterilisation reversal has been self-funded.

• Couples must have been co-habiting in a stable relationship for a minimum of two years.

• NHS funding will not be provided to couples where either partner has already received the number of NHS-funded IVF treatment cycles supported by NHS Scotland, regardless of where in the UK they received treatment.

• No individual (male or female) can access more than the number of NHS-funded IVF treatment cycles supported by NHS Scotland under any circumstances, even if they are in a new relationship.

• Patients should not be placed at the end of the waiting list following an unsuccessful treatment cycle.

If you would like to discuss your situation in more detail, or you would like more information about UK fertility law, please click here or email louisa.ghevaert@porterdodson.co.uk or call +44 (0)207 222 1244.

Senate passes bill to regulate surrogacy in Louisiana

June 17, 2013 By Louisa Ghevaert

Louisiana will this month introduce regulations that prohibit gay couples and single men and women from commissioning surrogacy arrangements in the state, provided Louisiana Governer Bobby Jindal agrees to ratify Senate Bill 162.

The final version of Bill 162 defines “intended parents” as “married persons,” effectively barring unmarried partners and same-sex couples from becoming parents through surrogacy.

Consequently, the legislation has been opposed by a diverse coalition of political, LGBT, women’s rights and religious groups, in what is a deeply conservative and traditional area of the United States.

At present there are no Louisiana state laws relating to surrogacy and, as such, surrogacy arrangements and associated contracts are not recognized by the state. This, proponents of the Bill argue, curtails the legal rights of surrogate mothers, spouses and intended parents alike.

The Bill’s sponsor, Democratic state Sen. Gary Smith, is understood to have introduced it largely based on personal experience. He and his wife conceived their two children with the help of an out-of-state surrogate mother.

The Bill’s progress through the legislative process was slowed earlier this year when a Republican state Representative, Frank Hoffman, tried to attach an amendment that, as New Orleans-based newspaper Times Picayanne suggested, ‘would cause the bill to self-destruct’ should the US Supreme Court overturn the Federal Defence of Marriage Act (DOMA).

DOMA has been in place since 1996 and prohibits the Federal Government from recognizing any marriage that is not between a man and a woman, even if gay marriage is legal in the couple’s home state. LGBT groups hope that the Supreme Court will therefore overturn Section Three of DOMA, so that Federal and State laws may be reconciled in respect of marital benefits and programs provided by the Federal Government, including taxation categories, social security benefits, healthcare benefits and hospital visitation rights. The Supreme Court is expected to make a ruling on the act this summer.

The removal of the Rep. Hoffman’s amendment to the Senate Bill, which would have identified marriage as only between a man and a woman, keeps the door open to gay couples who wish to commission surrogacy, but only if the U.S. Supreme Court overturns DOMA, therefore requiring Louisiana to recognize gay marriages performed in other states.

Other amendments to the Louisiana bill, including one requiring a doctor’s certification that the use of a surrogate is medically necessary for the parents to conceive, survived a committee review.

The Bill will now make its way to the office of the Governor of Louisiana, whose responsibility it is to sign the Bill into effect, if he so chooses.

If you would like to discuss your situation or you would like more information about surrogacy, please click here or email louisa.ghevaert@porterdodson.co.uk or telephone Louisa on +44 (0)207 222 1244.

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Louisa Ghevaert addresses College of Medicine

June 12, 2013 By Louisa Ghevaert

Maintaining her long-standing commitment to lobbying healthcare professionals and legislators on the increasing importance of fertility law, Louisa addressed attendees at the College of Medicine’s Annual Conference yesterday.

The Conference, which this year focused on patient self-care, took place at the headquarters of the Royal College of Obstetricians and Gynaecologists, in Regent’s Park, London. Key note speakers included Professor Graeme Catto, President of the College of Medicine, and Norman Lamb MP, the Coalition Government Minister for Health.

Louisa addressed attendees as part of a session entitled ‘Self Care for Fertility’, focused on the important role played by the patient in determining the course of their family-building journey. Louisa’s presentation emphasised the need for clinicians, as well as patients, to consider the legal realities of what is often referred to as ‘fertility tourism’. At a time when growing numbers of UK couples seek fertility treatment outside the UK, at the recommendation of their healthcare professional or a fertility clinic, it is important that the legal complexities inherent in such arrangements are not forgotten in the wake of the increased ease with which surrogacy and other assisted reproductive treatments can be commissioned abroad.

Louisa’s address to the College of Medicine’s Annual Conference follows her presentation to the American Board of Attorneys (ABA) at their Spring conference in Alaska, earlier this year. Louisa will also be addressing the Autumn Conference of the American Academy of Assisted Reproductive Technology Attorneys (AARTA) in Charleston, South Carolina, later this year, maintaining the pressure required to ensure legislators at home and abroad recognise the growing importance of fertility treatment and surrogacy as an increasingly common solution to couples’ family building difficulties.

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Irish Government to Appeal Surrogacy Ruling

June 12, 2013 By Louisa Ghevaert

The Irish Government’s Department of Social Protection last week confirmed that it will appeal a landmark Supreme Court ruling that allowed the genetic mother of twin girls – born to the woman’s sister, who acted as surrogate – to be named as the legal mother on her twins’ birth certificates. The birth mother had supported the original application.

Announcing its intention to appeal, the Department of Social Protection said that, whilst it was “extremely mindful of the family at the centre of this case”, the Government had agreed the judgment was “of exceptional public importance” and therefore should be appealed.

However, the spokesperson was keen to point out that the move to appeal did not automatically mean that the Government opposed the outcome of the ruling, rather that the judgment “… raises important questions about how motherhood may be determined under Irish law,” and that, consequently, there are a number of important legal points of great public interest that require clarification.

The Department warned that the wording of the judgments could, in future, restrict the ability of the Irish parliament to legislate on surrogacy and the use of assisted reproductive technologies. At the time of writing, the Irish Justice Minister, Alan Shatter, is preparing a new Family Relationships and Children Bill for consideration before the Irish parliament, which it is expected will address issues surrounding surrogacy law.

At present, there are no laws governing surrogacy or other assisted reproductive treatments in Ireland. Consequently, it is expected that the Supreme Court will fast track the appeal, in circumstances where the solicitor for the couple at the centre of the case has already warned of possible delay the appeal process may cause her clients, however any fast tracked appeal may still take several years to conclude.

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New IVF technology sparks patents row

June 12, 2013 By Louisa Ghevaert

The scientific community has criticised Stanford University and US biotechnology company Auxogyn for their involvement in patenting a test designed to increase the success of IVF, described earlier in this blog.

The patents cover the predictive parameters used in the Early Embryo Viability Assessment (Eeva) test, where time-lapse photography of days-old embryos are studied to determine the likely viability for implantation using IVF.

The patents were issued to Stanford University by the US Patent and Trademark Office and are licensed exclusively to California-based biotechnology company Auxogyn.

Auxogyn reports using the test can improve the ability to identify embryos with the strongest potential to continue development from 60 percent of the time to 85 percent of the time, as was estimated by the Nottingham-based clinicians who first developed the procedure.

The test is currently available in six locations across the UK and Ireland, and is being trialed in the US.

However, embryologist and co-founder of private genetics company Reprogenetics, Jacques Cohen, argued the patents relate to naturally occurring phenomena, and was quoted in The Guardian as saying the decision to patent the procedure will make treatments “prohibitively expensive”. He has called for fellow scientists to campaign against the decision.

In an article for the journal Reproductive BioMedicine Online, titled ‘On Patenting Time And Other Natural Phenomena’, Cohen wrote: “The length of the cell cycle is not an invention and its key role in development is not a new observation; it is an indisputable and well‐known fact of nature.”

The row started in the wake of the Myriad trial, where the patentability of human genes is being considered at the US Supreme Court.

There are fears the US patents will reduce the availability of the test, which could benefit many couples, about one in six of whom have difficulty conceiving. In the UK, others have argued that, as the Eeva technology is likely to become an essential component of IVF treatment, the patent-associated expense may reduce the likelihood that the NHS will continue to make available IVF to couples who qualify.

Quebec to review IVF provision

June 6, 2013 By Louisa Ghevaert

The assembly government in Canada’s French-speaking district of Quebec recently announced it is undertaking a wide-ranging review of IVF treatment in the province.

The minister for Health, Réjean Hébert, confirmed that several dozen groups, specialists, professional associations, women’s rights groups and private clinic operators have been asked to appear before Quebec’s Health and Welfare Commissioner, Robert Salois.

Quebec is one of the few jurisdictions in the world to offer fully covered assisted reproductive treatments paid for by a public health system.

The opposition party has criticized the move, though. Former health minister and Liberal MNA, Yves Bolduc, who introduced the program in 2010 expressed concerns that the government’s decision to review it was the first step to introducing user-fees to cover the costs of the treatments.

“The need to review ethical standards is one thing. But it is quite another to call into question a program that is a model in the world. In certain areas, we have proven to be the best. Why call into question a program where we have proven to be the best?” Mr Bolduc said.

The ministry confirmed that the review had no intention of outlawing the practice but that serious consideration was being given to whether or not the Quebec government would continue to provide the treatment free of charge.

In his review of the program, Mr. Salois also has the mandate to compare the Quebec program to what exists in other countries as well as in other provinces and examine the laws that oversee assisted conception and the services offered to women.

Health minister Hébert noted that the cost of the program has skyrocketed since it was introduced in 2010, costing the province about $60-million a year.

The review of the program will be completed later this year with proposed changes expected early in 2014.

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India to allow single people to access surrogacy?

June 4, 2013 By Louisa Ghevaert

According to a story in last Thursday’s India Express, with an unexpected shift in policy, India’s Ministry of Home Affairs has outlined proposals that will overturn restrictions preventing single foreign nationals from commissioning surrogacy arrangements in the country.

Regulations introduced late last year (discussed here), require that anyone wishing to enter India for the purposes of surrogacy must do so on a ‘medical visa’, which is available only to heterosexual couples of two years’ marriage. Consequently, singles and same sex couples, for whom India had become a favoured destination for surrogacy, have been all but barred from commissioning arrangements in the country.

This alleged policy u-turn sees the Indian ministry extending medical visas to single men and women, as well as married heterosexuals. Whilst the regulations will continue to prohibit gay and lesbian couples from obtaining the necessary documentation, the Indian Express has quoted a senior official as saying that the changes will mean ”one of the partners, either male or female, can get a medical visa.”

Single applicants will nonetheless still face the same hurdles as married heterosexual couples, requiring an official undertaking from the embassy of their country of origin confirming that surrogacy is a recognised practice in that country and that any future surrogate-born child will be granted nationality and citizenship, before being accepted for treatment at a licensed clinic.

In addition to these existing requirements, the Express confirms that there are further propsals to introduce compulsory DNA testing in order to establish a genetic link between the surrogate-born child and the commissioning parents and an undertaking from the intended parents that they will be responsibile for the care of the surrogate child.

The proposals were alleged to have been due to be approved after India’s Union Home Minister Mr Sushil Kumar Shinde returns from a visit to the US.

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Court terminates father’s PR

May 22, 2013 By Louisa Ghevaert

On 12 April 2013, Mr Justice Baker handed down a judgement to terminate a father’s parental responsibility. Unsurprisingly, as the first judgement on the issue since 1995, it has already raised a great deal of interest within the sector.

The case involved a father who was convicted for sexual offences against his step daughters. On being released from prison, his ex-partner applied to the court to terminate his parental responsibility because the father wanted to have contact with his biological son who lives with his half sisters (the victims).

In passing the judgement, Mr Justice Baker made it clear that as a starting point it should be the view of the court that once parental responsibility has been obtained this should not be terminated for anything less than solid reasons. That said, this needed to be weighed up against the child’s interests, being the paramount consideration.

In presenting his decision, the judge acknowledged the importance of the need of the child (D), to grow up with some understanding of his origins and, whenever possible, (have) a relationship with each biological parent. He balanced this need against the importance of the child’s overall and future emotional wellbeing and security. In ordering that the father’s parental responsibility be terminated Mr Justice Baker said that the reason for this conclusion was that “in this case there (was) no element of the bundle of responsibilities which his father could in present or foreseeable circumstances exercise in a way that would be beneficial for D”.

If you would like to discuss your situation or you would like more information on our parenting and children law work, please click here or email louisa.ghevaert@porterdodson.co.uk or telephone Louisa on +44 (0)207 222 1244.