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Informal surrogacy arrangements: a ‘cautionary tale’

PD branding Mk 2Last week, the English High Court published a case about a surrogacy dispute known as JP v LP & Ors [2014], in which Louisa Ghevaert and the team at Porter Dodson Fertility represented the father.   The case is significant because it is rare for UK surrogacy arrangements to fall into dispute and because it highlights the complex legal problems that can arise in the absence of specialist legal advice.

Background

The case relates to a little boy who was born following an informal surrogacy arrangement in March 2010.  A married couple entered into a private surrogacy arrangement with a friend of the wife.  Although the wife had given birth to a child from a previous relationship, she had undergone a hysterectomy and was unable to conceive a child with her husband.  The surrogate mother conceived artificially at home using the husband’s sperm and her own egg (a ‘host’ surrogacy arrangement).

As conception did not follow treatment at a UK fertility clinic licensed by the Human Fertilisation and Embryology Authority, there was no third party consideration of the welfare of the child.  The couple and the surrogate mother did not receive information or counselling to ensure they understood the issues arising from a surrogate birth or the legal effect of an informal arrangement.

The surrogate mother gave birth to a child in March 2010 at the Leicester Royal Infirmary and he was handed over to the couple by agreement.  The surrogate mother was by operation of law the child’s legal (and biological) mother and the intended father was the child’s legal and biological father.  The surrogate mother and the intended father were named as the parents on the child’s birth certificate and both held parental responsibility for the child.  As a result, the intended mother had no legal or biological relationship with the child at birth.

The couple’s marriage broke down within month’s of the child’s birth and they separated.  The intended mother then issued an application for a residence order in respect of the child in Leicester County Court and a shared residence order was made in her and the intended father’s favour in July 2010.  However, despite undertakings by the intended parents at court to regularise the child’s legal status by way of a parental order application they failed to issue the application within the statutory six month time limit following the child’s birth.

Further difficulties followed in 2011.  The case was transferred to the English High Court to address the issues arising in circumstances where there was no parental order regularising the legal status of the three adults involved and to consider how this impacted on the exercise of parental responsibility for the child.

On 2 July 2013, given the exceptional circumstances of the case, the judge made the child a ward of court.  She endorsed the shared residence order between the intended parents and delegated parental responsibility to them jointly.  The judge further prohibited the surrogate mother from exercising any parental responsibility for the child without leave of the court.

The judge highlighted that there is no provision within the Human Fertilisation and Embryology Act 2008 to extend the six month statutory time limit post the child’s birth.  She highlighted that the policy and purpose of the parental order regime is to provide for the speedy regularisation of legal parenthood in respect of surrogate born children and that this policy does not sit comfortably with continued involvement by the surrogate mother in the lives of the intended parents and their child.

The judge highlighted the ‘real dangers’ that can arise with informal surrogacy arrangements.  She highlighted the importance of a multi-agency surrogacy protocol operating in every Health Authority in England and Wales, as this would go some way to ensuring that in informal surrogacy arrangements the welfare of the child is considered and the adults will be given important information and advice.  She also highlighted that there are few lawyers with specialist expertise, demontsrated by the fact that the first firm of solicitors drafted an illegal surrogacy contract for the parties and following the issue of Children Act (residence) proceedings for the child the statutory time limit for a parental order was not known or checked.

Comment from Louisa Ghevaert

This is a serious case of surrogacy gone wrong, which could have had devastating consequences for those involved.  A combination of misinformation, a catalogue of legal errors and marital breakdown caused immense distress, recrimination and legal uncertainty for the intended parents, their surrogate mother and their child.  A complete lack of specialist legal advice initially resulted in the illegal drafting of a surrogacy contract, confusion about the parties’ legal status and a failure to obtain a parental order.

Unlike mainstream family law the parental order regime is governed by assisted reproduction law.  There is no legal flexibility in the non-extendable six month deadline and it is just that, non-extendable.

Having ‘missed the boat’ with a parental order application, the surrogate unintentionally remains legal mother and financially responsible for the child.  The child also remains a ward of court and the subject of a shared residence order.  A parental order would have been a permanent legal solution which would have entirely removed the surrogate’s legal status.

Anyone entering into a surrogacy arrangement, whether by private arrangement or involving treatment at a UK licensed fertility clinic or abroad, should first obtain expert legal advice.  Intended parents and surrogate mothers need to understand the implications of a surrogacy arrangement and the importance of a parental order to legally protect themselves and the surrogate born child”.

Click here to read more about the case and surrogacy law in the event of a surrogacy dispute.

If you would like to discuss your situation or find out more about surrogacy law in the UK or internationally please contact Louisa by email Louisa.ghevaert@porterdodson.co.uk or call +44 (0)207 222 1244.

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Surrogacy: problems and pitfalls

The English Court has recently published a judgment which highlights various legal problems which UK based intended parents encountered following their US surrogacy arrangement. The case, Re W 2013, highlights concerns about illegality and legal irregularity in the context of an international parental order application and the implications of this from an English legal and public policy perspective.

By way of background, the intended parents worked with a US surrogacy agency in California, where commercial surrogacy is permitted, and they were matched with a married surrogate mother in the US state of Nevada.  Their surrogate mother successfully conceived and triplets were born (two embryos were transferred and one subsequently split resulting in a triplet pregnancy). Prior to the birth, the intended parents were advised by their US attorney and agency in California to apply for a pre-birth order in Nevada to secure their legal status for the triplets.  The intended parents therefore instructed a second US attorney in Nevada and obtained a pre-birth order in Nevada which conferred parental status upon them and extinguished the legal status of their surrogate parents for the triplets.

Upon their return to the UK, the intended parents applied to the English Court for parental orders for their children.  During these legal proceedings, the English Court became concerned because the Nevada pre-birth order was granted on the basis the gestational surrogacy arrangement only reimbursed the surrogate mother’s living expenses, when in fact additional compensation was paid to the surrogate mother totalling $38,500 and was not disclosed to the Nevada Court.

The English Court, dissatisfied by the evidence it had been provided with, directed that the intended parents file further statements explaining how they were matched with their surrogate, how they came to complete the documentation in support of their pre-birth order (including details of any advice they received).  In addition, the English Court directed that the intended parents file additional evidence about the law in the state of Nevada (in particular addressing the effect of the payments to their surrogate mother) and evidence from their US agency addressing the process of selecting/matching them with their surrogate and what advice, if any, their agency gave to them in relation to seeking a pre-birth order in Nevada.  The English Court also appointed Cafcass Legal as advocate to the court to assist on issues relating to public policy and listed the case for a further court hearing.

The English Court ultimately granted parental orders to the intended parents, but it highlighted that at the time the surrogacy arrangement was entered into, the payment of compensation (as opposed to reasonable pregnancy related expenses) to a surrogate in Nevada was unlawful although it did not amount to a criminal offence.  This reflected further expert US legal advice which stated that in the overall circumstances of the case, the Nevada Court would still likely have endorsed the pre-birth order.  The judge also granted parental orders because she was satisfied that the intended parents had acted in good faith, they had no prior knowledge of the law in Nevada and had sought and relied on the legal advice they received in California and Nevada.

Although parental orders were granted to the intended parents, the case highlights the importance of carrying out thorough research and obtaining accurate expert advice throughout the process.  The difficulties in this case resulted in the English Court requiring further evidence to be submitted, the appointment of an independent legal advocate to advise the court on the complex legal and public policy issues and three complex court hearings, the costs of which were borne by the intended parents.

If you would like more information about the legal issues associated with an international surrogacy arrangement contact me by email louisa.ghevaert@porterdodson.co.uk or call +44 (0)207 222 1244.

 

 

 

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Louisa Ghevaert speaks on surrogacy law at the Fertility Show

Fertility Show

The Fertility Show caters for prospective parents of all backgrounds, from couples experiencing infertility to solo parents and same-sex couples and hosts more than 100 exhibitors and seminars by fertility experts, including UK and overseas clinics, charities and patient care groups and infertility counsellors.

Amongst the speakers this year were Professor of Health Pyschology at Cardiff University, Jacky Bolvin, Hugh Thornberry, the Chief Executive of Adoption UK, and Juliet Tizzard, Head of Policy and Communications at the Human Fertilisation and Embryology Authority.

Louisa was pleased to have been invited back again to present a seminar on the legal implications associated with surrogacy arrangements both in the UK and abroad, to a large audience of prospective parents and other interested parties.

It is the latest in a number of public speaking engagements that Louisa has undertaken during 2013, including lectures delivered to the American Bar Association, the College of Medicine and, later this month, the American Association of Assisted Reproduction Attorneys (AAARTA), at their autumn conference in Charleston, South Carolina.

Please visit the relevant sections of our website for more information about UK fertility law or, if you would like to discuss your situation in more detail, please email louisa.ghevaert@porterdodson.co.uk or call +44 (0)207 222 1244.

Chambers

Louisa Ghevaert ranked by Chambers UK 2014

Porter Dodson Fertility and Parenting team continues to attract industry recognition, this time from Chambers UK, who have ranked Louisa Ghevaert as a leading expert in family and fertility law in their 2014 directory.

First published in 1990, the Chambers and Partners directories now provide an annual analysis of the best law firms and legal practitioners from over 185 jurisdictions worldwide, compiled by 140 full-time researchers employed at their head office in London. Their strength lies in its methodology, combining self-nomination with in-depth face-to-face and telephone interviews with lawyers and clients. These interviews provide wide-ranging, focused and testable information on which Chambers’ rankings and commentary rely.

Within the directory, law firms and individual lawyers are ranked in bands from 1-6, with 1 being the best. The qualities on which rankings are assessed include technical legal ability, professional conduct, client service, commercial astuteness, diligence, commitment, and other qualities most valued by the client.

We’re delighted that Louisa has been ranked within Band 2 with the directory commenting that: ‘Sources describe her as “an expert in a very difficult and specialised area of the law - she knows her subject extremely well and gives knowledgeable and sensible advice”.

This follows on from Louisa’s other successes this year, including her listing in the Legal 500 UK directory for 2013, her shortlisting for the Family Law Awards and her commendation at the Law Society Excellence Awards 2013, and provides further exposure for the complex and important issues involved in fertility law and practice.

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

Law society Excellence Awards 2013

Porter Dodson Fertility ‘Highly Commended’ at Law Society Excellence Awards

Porter Dodson LLP is delighted to announce that Louisa Ghevaert’s fertility and parenting team was ‘Highly Commended’ for Excellence in Business Development and Innovation at The Law Society Excellence Awards 2013.

The results were announced at a star-studded cermony held at the Park Plaza Hotel in Westminster, London, on Tuesday 22 October 2013, and were presented by BBC television and radio journalist Mishal Husain.

The Excellence Awards are widely seen as the most prestigious event in the legal calendar, celebrating the achievements of firms and practitioners from across the sector in a variety of categories, such as Marketing and Communications, Learning and Development, Environmental Responsibility and Diversity and Inclusion.

The winners were decided by a panel of more than 30 accomplished individuals from across the legal sector and beyond, including the Shadow Lord Chancellor and Secretary of State for Justice, Rt Hon Sadiq Khan MP, and Monique Villa, CEO of Thomson Reuters.

Excellence in Business Development and Innovation was a newly combined category for 2013 but previous winners of the Excellence in Innovation and Excellence in Business Development categories include Eversheds LLP and multi-national Taylor Wessing. Amongst the other eight shortlisted nominees in the category for the 2013 awards were UK heavyweights Simpson Millar LLP and Morgan Cole LLP. The category was judged by CEO of Ipsos MORI, Ben Page, and Guy Berringer QC.

It is the second consecutive year that Porter Dodson’s fertility and parenting team has been shortlisted for a Law Society Excellence Award and follows Louisa’s successful shortlisting in the category of Most Innovative Family Lawer of the Year at the Family Law Awards 2013, as well as her ranking in the UK editions of leading industry directories Legal 500 and Chambers and Partners.

Whilst the award represents more great news for the fertility and parenting team at Porter Dodson and its head Louisa Ghevaert, recognising our groundbreaking and unique work in this complex and emerging area, it also provides greater exposure for the fertility sector and highlights the increasing intersection between fertility and family law.

To find out more about what others say about us, please click here.

Please visit the relevant sections of our website for more information about UK fertility law or, if you would like to discuss your situation in more detail, please email louisa.ghevaert@porterdodson.co.uk or call +44 (0)207 222 1244.

Fertility lawyer Louisa Ghevaert interviewed for Chinese television

We’re delighted that Louisa Ghevaert was interviewed for part of a series of programmes broadcast in China earlier this year.

“What You Didn’t Know About The West” comprised five hour-long documentaries on various themes, from Media, to the Economy, to Food, presented by respected media theorist Hugo De Burgh, Director of Westminster University’s China Media Centre. It was broadcast by China’s state broadcaster, China Central Television, earlier this year.

Louisa was interviewed about NHS funding for IVF treatment in the UK as part of the series’ ’Health’ documentary. In particular, Louisa spoke about the inequalities of treatment provision in the UK, the Postcode Lottery, and the difficult choices facing the NHS when deciding which treatments to prioritise.

To see a video extract of the documentary section focusing on IVF, which features Louisa, please visit our videos page.

Indian Ministry ends surrogacy visa relaxation

On 12 October 2013, India’s attempts to reign in its international surrogacy sector took another twist when the Ministry of Home Affairs issued a warning to embassies that any concessions regarding India’s tightened medical visa regime would cease on 31 October 2013.

The full guidelines permit the granting of a medical visa (necessary for intended parents to enter India for the purposes of surrogacy) only upon the satisfaction of strict criteria.

This policy shift, announced in July 2012, was publicised by the Indian Government as an attempt to crack down on the unregulated Indian surrogacy market by restricting the number of people able to commission surrogacy arrangements in the country. However, the policy has been widely described as homophobic (only heterosexual couples of two years marriage can apply for a medical visa, for example) and criticised for failing to tackle underlying factors contributing to concerns about exploitation, such as poverty and poor agency regulation.

An article published in the Deccan Herrald last week suggested embassies had been operating a flexible approach to the guidelines since the announcement last year and there was even rumour of a Government U-Turn on the proposals. To date there has been no confirmation if the full force of the medical visa regime will be applied retrospectively.

If you would like more information about international surrogacy law  or surrogacy law in the UK please contact louisa.ghevaert@porterdodson.co.uk or call +44 (0)207 222 1244.

Porter Dodson Fertility attends the Family Law Awards

On Wednesday 9 October the team attended the Family Law Awards as Louisa was shortlisted for an award in the category of Most Innovative Family Lawyer of the Year 2013.  The event, now in its third year, was organized by Jordan Publishing and took place at the Hilton Park Lane, London.

The Family Law Awards brought together leading solicitors and barristers from across the country to recognise their excellence in family law.  We are proud that Louisa was shortlisted for her leading work and expertise in family and fertility law and that we were able to celebrate the passion, determination and hard work of family lawyers at the awards ceremony itself.

We would like to thank all those who voted for Louisa for their encouragement in helping us to continue our work in striving to help others achieve their dreams of having much wanted families in the field of assisted reproduction and family law.  Louisa’s shortlisting for this important award highlights the increasing recognition of fertility law and its association with international family law. 

We would like to congratulate all the shortlisted candidates and the winners on the night for their success and a special thank you to the heads of the three main professional organisations, the Family Law Bar Association, Resolution and the Association of Lawyers for Children, who volunteered their time to judge the awards.