Leading fertility lawyer says UK surrogacy laws must be reformed urgently

Britain’s surrogacy laws are no longer good enough and must be reformed urgently to stop court battles wrecking people’s lives, a leading fertility lawyer has said. Her comments follow a legal ruling where a woman who had a baby with a gay couple but then refused them access was ordered to hand her one-year-old daughter over to the men. The judge ruled in favour of the men after concluding it would in the best interests of the girl that she grow up with her father and his partner. The case has reopened the debate around surrogacy in the UK, where a lack of regulation means that disputes between parents and surrogates often end up in the courts. Natalie Gamble, one of the UK’s leading fertility lawyers, said: “The law urgently needs changing. The laws in place were written in the 1980s and the world has moved on. I don’t think they were ever properly thought through. “The situation around UK-based surrogacy is driving thousands of parents overseas every year and creating new issues such as children born to UK parents being stuck abroad. What we urgently need is a proper structure.” Peter Morris, a partner and family law specialist at Irwin Mitchell, said: “The key issue raised by this case is that the UK lacks a clear, comprehensive legal framework to cover the concept of surrogacy. “A number of countries, including the US, have a proper process that those involved in surrogacy must undertake. Such systems would see all of those involved make a clear agreement regarding the future of the child.” In the latest case, the woman, identified only as S, said she had entered into an agreement, which would see her acting as the “main parent and carer”. The child’s genetic father, known as H, disputed this, saying the agreement was that he and his male partner, known as B, would “co-parent” the girl, with the woman continuing to “play a role”. The judge, Ms Justice Russell, ruled in favour of the father at the High Court. Under UK law, surrogates are the legal mother of any child they carry, even if they are not genetically related, unless they sign a parental order after they give birth transferring their rights to the intended parents. Article: 10th May 2015 www.independent.co.uk

New Foreign office guidance for surrogacy arrangements

The new guidance (available at www.gov.uk) sets out the rules on British nationality and immigration, and gives clearer guidance on the procedures parents need to follow to bring a child born through surrogacy abroad home to the UK. In practice, we know on the ground that parents can wait up to 5 months to get the paperwork they need to travel back to the UK after a child is born as a result of an international surrogacy arrangement, so careful planning is key. The guidance also highlights the need for parents to look beyond the immediate issue of getting home and ensure they do not miss the strict six month deadline for applying to the family court to become the legal parents in the UK. UK law does not recognise foreign birth certificates in surrogacy cases, and without a parental order granted by the UK court the foreign surrogate and her husband remain the legal parents in the UK. Last year High Court Judge Mrs Justice Theis said: ‘The message needs to go out loud and clear to encourage parental order applications to be made in respect of children born as a result of international surrogacy arrangements, and for them to be made promptly’. The FCO is urging parents to get legal advice before embarking on international surrogacy. At NGA and Brilliant Beginnings, we are passionate about helping parents planning overseas surrogacy arrangements to get the right information at the outset. Since representing the first parents have an international surrogacy arrangement ratified by the UK court in 2008, we have worked with hundreds of families planning overseas surrogacy arrangements. In 2013, 38% of our new international surrogacy cases involved India, 25% the USA and 7% the Ukraine. There is more information on NatalieGambleAssociate's website about international surrogacy law and about UK immigration and nationality. Article: www.nataliegambleassociates.co.uk 11th February 2014 Read more about Fertility Law at www.prideangel.com

http://blogs.prideangel.com/post/2013/09/A-case-for-cautious-commercial-surrogacy-in-Australia.aspx

In the last 30 years, we have seen 26 public inquiries into surrogacy in Australia. In recent years all states and territories have liberalised their laws to allow for unpaid surrogacy to occur with the assistance of licensed fertility providers, and to provide for intended parents to acquire legal status. But our system is still not working. In 2010-11 there were just 16 recorded surrogacy births within Australia, while 394 babies were born in India to Australian citizens – the majority of them almost certainly via commercial surrogacy. We need to make big changes to allow surrogacy to be more accessible at home, rather than exporting our fertility needs to other countries. The fundamental principles of fairness and safety require the informed and continuing consent of all participants in surrogacy, especially of the birth mother. When most surrogacy involving Australians is taking place offshore, it's plainly not accessible and also may not be safe, or not as safe as it would be onshore. Nor, where poorer countries are the providers, is it necessarily fair. Despite remarkably little regulation in the United States, surrogacy agencies and clinics have adopted a fairly common set of practices and standards, including psychological screening, counselling and support services. Research consistently shows that US surrogates are not impoverished or motivated by financial concerns, and are largely satisfied with their experience. In contrast, Australian women are expected to take surrogacy on as altruistic act and can only be paid a very limited amount for documented expenses. This drives people to evade the system, masking unlawful payments onshore, or going offshore to India and Thailand, resulting in reduced or zero access to professional support services and ethical safeguards. The more work I do on assisted reproduction, the more I see that professional support services are an important part of informed consent and the decision-making processes of parents. In the rare instance when things go do go wrong, such as in the Re Evelyn case in 1998, it usually involves informal arrangements in which none of the parties had any screening, counselling, or legal advice before the arrangement, nor any support services during or after it. Ideally, governments should provide screening, matching and counselling services, but if, as is currently the case, they don’t, it may be better to have commercial providers taking on this role rather than no one at all. A major argument against payment to surrogates is that it may act as undue influence that impairs informed consent. This is an important consideration. Surrogacy works when a woman voluntarily undertakes a pregnancy and is happy to relinquish a baby she does not regard as her own. If she has agreed only because of money and not because she regards that baby as someone else’s, everything falls apart. But in addition to guarding against payments that are too high, we should be asking whether surrogates are paid too little. Women who undertake pregnancies for others in surrogacy arrangements are performing labour (in both senses) and they are undertaking risks. Paying nothing does not protect or value this role. In Australia, altruistic surrogacy undertaken through licensed fertility services means that doctors, nurses, social workers, counsellors, scientists, technicians, storage facilities, receptionists, cleaners and delivery people are all paid. So are shareholders. Only the birth mother is not. There are a range of ways that surrogates could be paid within a regime of fair compensation that still guarded against improper inducement. In the UK the fertility regulator recently set a flat compensation payment of £750 ($1,100) per cycle for egg donors in recognition of the pain and risks they undertake. Payments of £15,000 are also regularly accepted by courts in the UK as reasonable compensation for surrogates, although there is no set guideline. Setting a clear minimum (representing a labour based contribution or compensation for risk and burden) would provide certainty if accompanied by proper screening protocols and regulation to guard against unfair inducement. There are important concerns about commercial surrogacy practices that go beyond the question of how much money is paid and go to who is paid for what. Problematic practices in surrogacy common in both developed and developing economies include high multiple birth rates (which are dangerous to babies and surrogate); enforceable contracts (which can prevent surrogates from having control over their pregnancy, and which compel relinquishment after birth), and the widespread use of anonymous egg donors. None of these are mandated by commercial markets, but they are strongly associated with them. An Australian system of compensated surrogacy could avoid such risks. We would continue to centre the informed and continuing consent of the birth mother through important safeguards such as ensuing that she has full control of pregnancy care and decisions, and that consensual relinquishment of the baby and her parental status occurs only after the birth. We already have very high clinical and ethical standards operating in tandem with government regulation to prevent multiple embryo transfer and to record donor identity. Commercial surrogacy could be contained within the existing successful framework of health regulation in Australia rather than distorting clinical and legal practice, as it has arguably done in other countries with far less regulation. This doesn’t mean copying commercial markets – it means learning from them. An Australian system which allowed for advertising, professional intermediaries and payment, if carefully regulated, would be safer and fairer than the now widespread practice of Australians travelling overseas for surrogacy. Article: 3rd September 2013 www.theguardian.com

Yotam Ottolenghi on becoming a gay dad through surrogacy

Hoorah for NGA client Yotam Ottolenghi and his wonderfully heartfelt piece in Saturday’s Guardian: 'Why I’m coming out as a gay father'. In a brave and personal editorial, the renowned TV chef and restarauter has spoken out about his long journey to fatherhood as a gay man, and how becoming a father has enabled him to reconcile himself to a new openness about his sexuality. He says: “At the end of a five-year process, I know we can’t be shy about telling our story, that privacy just isn’t an option. That’s because we could only have had Max, and hopefully also a future sibling, thanks to other people who have shared their stories. Max has already brought us immense joy. He has also forced our second coming out, this time as gay parents.” We salute his bravery in coming out to the world about such incredibly personal issues. We have been privileged to share his journey (as his legal advisors), which has taken him through the option of co-parenting to international surrogacy and the birth of his son Max earlier this year. We know it takes brave men like Yotam willing to talk about their experience to inspire others that it can be done, and to enable them to feel comfortable about their choices. The good news, from a legal perspective, is that the options for gay men to become fathers have never been better than they are now. Since 2010, gay men who conceive with a surrogate mother have been able to apply to the family court for a parental order. This ultimately gives them a UK birth certificate naming them both as parents. It is a legal solution for gay dads who conceive through surrogacy in the UK and abroad, and it fully resolves all the UK legal issues. Surrogacy in the UK is often more achievable than people realise, but many gay dads, like Yotam, are also going to the US where a more professional and managed surrogacy service is available. There has developed a significant track record over the past five years of the UK High Court authorising such arrangements (even though they involve commercial surrogacy arrangements), case law which we have been proud to have helped shape. Since 2005, gay men have been able to adopt as couples, with just the same rights as heterosexual couples. They have full and equal parental status and an adoption certificate to confirm it. And there is the option of co-parenting. Here the law is more complex, and in particular gay couples who donate sperm to lesbian couples may have no legal status as parents if the birth mother is in a civil partnership. But these arrangements work too, and there are legal solutions available. The climate has never been better for gay dads to start a family than it is now, and we hope that other gay men will draw courage from Yotam’s story.

Women risk surrogacy exploitation due to lack of legislation

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 Read more about surrogacy at www.prideangel.com

HFEA to give guidance to fertility clinics about surrogacy

New guidance may help clarify surrogacy: The Human Fertilisation and Embryology Authority has voted to update the guidance it gives to UK fertility clinics on surrogacy. The new Code of Practice will: - clarify what UK clinics should say to surrogacy patients, and - update clinic procedures and forms for surrogacy. The HFEA voted to make these changes (following advice from NatalieGambleAssociates and its own lawyers) at its meeting on 20 March 2013 and will now undergo a period of consultation on the practicalities, before the new Code of Practice is introduced on 1 October 2013. This includes a workshop for clinics and professionals practising in surrogacy, to be held at the HFEA on 30 April 2013. NatalieGambleAssociates congratulate the HFEA on a very sensible decision, which will mean clearer guidance for parents and clinics dealing with increasing numbers of surrogacy cases. In particular, it will be made clear that where a surrogate is unmarried, one of the intended parents (whether gay or straight, and whether or not a biological parent) can be named on the child’s initial birth certificate together with the surrogate. This approach will make the HFEA’s guidance entirely consistent with longstanding practice at register offices and in the family courts. You can find out more about the HFEA meeting on 20 March here, and more about surrogacy law. Article: April 2013 www.nataliegambleassociates.co.uk

HFEA to give guidance to fertility clinics about surrogacy

New guidance may help clarify surrogacy: The Human Fertilisation and Embryology Authority has voted to update the guidance it gives to UK fertility clinics on surrogacy. The new Code of Practice will: - clarify what UK clinics should say to surrogacy patients, and - update clinic procedures and forms for surrogacy. The HFEA voted to make these changes (following advice from NatalieGambleAssociates and its own lawyers) at its meeting on 20 March 2013 and will now undergo a period of consultation on the practicalities, before the new Code of Practice is introduced on 1 October 2013. This includes a workshop for clinics and professionals practising in surrogacy, to be held at the HFEA on 30 April 2013. NatalieGambleAssociates congratulate the HFEA on a very sensible decision, which will mean clearer guidance for parents and clinics dealing with increasing numbers of surrogacy cases. In particular, it will be made clear that where a surrogate is unmarried, one of the intended parents (whether gay or straight, and whether or not a biological parent) can be named on the child’s initial birth certificate together with the surrogate. This approach will make the HFEA’s guidance entirely consistent with longstanding practice at register offices and in the family courts. You can find out more about the HFEA meeting on 20 March here, and more about surrogacy law. Article: April 2013 www.nataliegambleassociates.co.uk

HFEA to give guidance to fertility clinics about surrogacy

New guidance may help clarify surrogacy: The Human Fertilisation and Embryology Authority has voted to update the guidance it gives to UK fertility clinics on surrogacy. The new Code of Practice will: - clarify what UK clinics should say to surrogacy patients, and - update clinic procedures and forms for surrogacy. The HFEA voted to make these changes (following advice from NatalieGambleAssociates and its own lawyers) at its meeting on 20 March 2013 and will now undergo a period of consultation on the practicalities, before the new Code of Practice is introduced on 1 October 2013. This includes a workshop for clinics and professionals practising in surrogacy, to be held at the HFEA on 30 April 2013. NatalieGambleAssociates congratulate the HFEA on a very sensible decision, which will mean clearer guidance for parents and clinics dealing with increasing numbers of surrogacy cases. In particular, it will be made clear that where a surrogate is unmarried, one of the intended parents (whether gay or straight, and whether or not a biological parent) can be named on the child’s initial birth certificate together with the surrogate. This approach will make the HFEA’s guidance entirely consistent with longstanding practice at register offices and in the family courts. You can find out more about the HFEA meeting on 20 March here, and more about surrogacy law. Article: April 2013 www.nataliegambleassociates.co.uk

HFEA to give guidance to fertility clinics about surrogacy

New guidance may help clarify surrogacy: The Human Fertilisation and Embryology Authority has voted to update the guidance it gives to UK fertility clinics on surrogacy. The new Code of Practice will: - clarify what UK clinics should say to surrogacy patients, and - update clinic procedures and forms for surrogacy. The HFEA voted to make these changes (following advice from NatalieGambleAssociates and its own lawyers) at its meeting on 20 March 2013 and will now undergo a period of consultation on the practicalities, before the new Code of Practice is introduced on 1 October 2013. This includes a workshop for clinics and professionals practising in surrogacy, to be held at the HFEA on 30 April 2013. NatalieGambleAssociates congratulate the HFEA on a very sensible decision, which will mean clearer guidance for parents and clinics dealing with increasing numbers of surrogacy cases. In particular, it will be made clear that where a surrogate is unmarried, one of the intended parents (whether gay or straight, and whether or not a biological parent) can be named on the child’s initial birth certificate together with the surrogate. This approach will make the HFEA’s guidance entirely consistent with longstanding practice at register offices and in the family courts. You can find out more about the HFEA meeting on 20 March here, and more about surrogacy law. Article: April 2013 www.nataliegambleassociates.co.uk

Maternity leave to be granted for parents through Surrogacy

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

Single man becomes a Dad through Surrogacy in 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

Surrogate mothers - Should they have the right to change their minds?

Natalie has written a comment piece for Bionews criticising the unchallengeable position surrogate mothers are currently given by UK surrogacy law. The law in the UK has long provided that the woman who gives birth is the legal mother. In surrogacy cases, the intended parents (one or both of whom must be the biological parents) can apply to the family court to have parenthood reassigned to them, but they are entirely dependent on the surrogate and her husband/civil partner giving their consent. If it is withheld, they cannot become the legal parents. Conversely, if the intended parents do not take responsibility, the surrogate has no means of holding them both legally responsible for the life they have created. Natalie criticises the law as being outdated in a modern age in which surrogacy is becoming more common. Very few arrangements do go wrong (a proportion of roughly 0.02%) and where things run to plan, the current law means that parental responsibility is left in the wrong hands for far too long, contrary to everyone’s wishes and the best interests of the child. In the rare cases where things go wrong, the courts in practice decide care arrangements flexibly on a best interests basis, but legal parentage can remain unresolved forever. It is time for us to introduce law which deals with surrogacy in a much more sophisticated way, understanding that it is a collaborative process in which the rights and responsibilities of everyone involved – the surrogate, her partner, the intended parents and the child – all need to be carefully balanced. This is what both surrogates and parents want, and what is in the best interests of children born through surrogacy. You can read Natalie’s comment piece Should surrogate mothers still have an absolute right to change their minds? or find out more about surrogacy law from our website. Article: 23rd October 2012 www.nataliegambleassociates.co.uk

Judge awards parenthood to gay dads after indian surrogate 'disappears'

The Telegraph and Daily Mail have today reported the international surrogacy case of D and L (2012). The case marks a legal first: the court agreeing to make a parental order after the surrogate mother could not be found to give her consent. We are proud to have worked with the parents on this case to win legal security for their family. A UK same sex couple had twin boys through an Indian surrogacy arrangement. They had taken legal advice at the outset and knew they would need their surrogate’s consent, after the birth, to become the legal parents under UK law. They became concerned during the pregnancy that their clinic might not be as helpful as they had thought, so we wrote to the clinic explaining what was needed, and the clinic confirmed they would help. However, after the birth, the clinic refused to secure the surrogate’s notarised consent. As a final insult, our clients were sent a couriered package which they thought finally contained the consent document they desperately needed – instead it contained a single sheet of paper with a sketch of an obscene gesture. They then tried to track their surrogate down themselves, but the address they had been given for the surrogate was a false one and they could not find her. They applied to the UK court for a parental order and asked the judge to help. Focusing on the need to give the boys legal security with their parents throughout their lifetime (and our clients’ extensive efforts to obtain the required consents), Mr Justice Baker in the High Court made them their sons’ legal parents.

High court challenge to change maternity leave rights for surrogacy families

A joint claim has been lodged at the High Court challenging the lack of maternity leave rights for families through surrogacy. Surrogacy UK and a mother directly affected are together seeking a declaration from the High Court that the current law is unfair. The issue is that UK parents who have a child with the help of a surrogate mother do not have rights to time off work to care for their new child, while parents who give birth or who adopt do. As a result, the mother bringing the claim (known only as RKA) was denied maternity leave rights by her employer to care for her newborn child, and was then made redundant while on unpaid leave. Surrogacy UK, which has brought the claim together with her in its capacity as a leading representative of many UK families, says: “We’ve made this claim as the leading surrogacy organisation in the UK, reflecting our responsibility to promote and protect the interests of our members and all others involved in surrogacy. Put simply, there can be no reason to treat parents of children born via surrogacy any differently from any other parent looking after a new-born. The Government has a responsibility to ensure that all parents have rights to a family life and the best possible start for their child.” Merry Varney from law firm Leigh Day & Co, who is representing RKA and Surrogacy UK, says: “The Government has a positive obligation under Article 8 of the Human Rights Act to protect surrogate parents to ensure respect for their private and family life and a positive obligation under Article 14 to avoid discrimination.” The anomaly which denies maternity leave was raised in Parliament earlier this year, when John Healey MP called for equal maternity leave rights for mothers through surrogacy. His constituent Jane Kassim had also been denied maternity leave after her cousin Amy carried her and husband’s twins (read more about what he said here). With the Department of Business Innovation and Skills currently reviewing the law on maternity rights, there is an opportunity to address the problem. While surrogacy was historically a rare phenomenon which only affected a tiny handful of families, that is no longer the case. The numbers of parental orders (the orders which make parents through surrogacy the legal parents) stood at 138 last year, up from 58 just two years ago. We at Natalie Gamble Associates have been campaigning to end discrimination against surrogate families for many years. As well as the employment law issues, other problems arise from the fact that it takes so long (often up to a year after the birth) for the parents to win legal recognition. There can be problems with medical consent, not to mention severe difficulties over immigration where children are born through surrogacy abroad. There is also no proper regulation of surrogacy services in the UK, while surrogacy thrives as an industry in many places abroad, driving more and more parents to go abroad. Surrogacy law in the UK desperately needs updating and we hope dealing with the employment discrimination will be just the first step.

Surrogacy in India - why the UK law needs to change

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

Surrogacy in India - what's the law for parents from the UK?

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

Gay Parenting: It's complicated - Guardian's feature on same-sex parenting

Emma Brockes has written a fabulous major feature for this weekend’s Guardian Weekend magazine on same sex parenting, in which Natalie Gamble Associates are proud to be quoted. The piece tells the story of three modern same sex parent families: Kellen and Patricia, lesbian mums from New York who have a daughter and are now expecting twins, following egg swapping IVF – Patricia is the birth mother but she carried embryos created with Kellen’s eggs. Will Halm and Marcellin Simard, gay dads to three children age 15, 13 and 10, who pioneered surrogacy as gay dads in California, where they were the first same sex parents to be named on a birth certificate together, and where Will now represents others as a fertility lawyer. Andrew Solomon and John Habich, gay dads to a truly alternative family structure – a son through surrogacy who they are raising together, and three more children co-parented with two different mothers. It is a wonderful picture of the realities of modern same sex parenting, with scenarios we are increasingly dealing with for families in the UK too. All the parents involved talk vividly about the challenges and problems they have faced as gay parents – not the playground prejudice and emotional problems many might expect, but losing legal rights when crossing borders, and grappling with obstructive passport authorities. But the biggest problem of all for alternative families remains surrogacy. As Emma says in her article: There is, in all this, one glaringly unsubtle problem, and that is surrogacy, which as a percentage affects gay men more than any other group. Commercial surrogacy is illegal in the UK, forcing many childless couples to seek help abroad. When they return, the British government is reluctant to endorse an arrangement that undermines public policy. “English law applies its own rules as to who the parents are, irrespective of what happens abroad,” says Natalie Gamble, the country’s leading fertility lawyer. “So even if you’re named as the parent on a US birth certificate, English law will say that the surrogate is the mother and if she’s married, her husband is the father.” This can lead to some bizarre situations. In 2008, Gamble’s firm acted for a British couple who had used a surrogacy service in Ukraine. “In Ukraine, the law said they were the parents. But under English law, the Ukrainian surrogate and her husband were the parents. The systems were in direct conflict. The result was that the children had no parents and no nationality. They had no right to stay in Ukraine, and they had no passport to cross any borders. That’s the worst nightmare of international surrogacy.” Gamble persuaded the Home Office to issue the children with discretionary entry clearance, then applied to the high court for a parental order, naming the British couple as legal parents. We have long campaigned for alternative families, both individually in court, and by arguing hard for changes to the law (including supporting the UK’s legal changes allowing gay dads and lesbian mums to be named on birth certificates together). Why do we do this? Because we believe that parents who love and cherish their children raise wonderful families, no matter what the structure. With that in mind we want to salute, above all, what Will Halm says about his teenage daughter: “That a test tube baby, from two gay men, is a well-adjusted, smart, polished girl at 15, who is comfortable talking about her family – she is what I would like the world to see. Not the parents who are creating the child, but the children themselves.” Article: 23rd April 2012 by Natalie Gamble Associates

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

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

Mother who had a baby through surrogacy challenges legal right to maternity leave

A mother who had a baby through a surrogate has launched landmark legal action for the right to paid maternity leave
Her employer refused to give her maternity leave, so she went to an employment tribunal. The woman, who has been allowed to remain anonymous by judges, was refused the leave by her employer when she became a mother. She is suing her employer, alleging sex and maternity discrimination, and has taken her case to the European Court of Justice (ECJ) to decide whether the British laws comply with European Union directives, which could force a change in the rules. The court is expected to make a decision later this year.

An estimated 70 women became mothers through surrogates last year and campaigners say they deserve the same rights as other women. Natalie Gamble, an expert in fertility law, said that only mothers who were pregnant or those who have adopted are entitled to take maternity leave under the existing rules, which left “a gap” in cases where mothers used surrogates. Stuart Walne, a spokesman for Surrogacy UK, a support organisation, said the rules created an added “trauma” for these women, who faced disputes over paid leave.

The woman started working as a midwife sonographer for her employer in July 2001. Her baby was born through a surrogate mother in August last year and the woman began breastfeeding the child soon after the birth, something that can be induced through hormone treatments and drugs. Her employer offered a career break, reduced hours and unpaid leave, but refused to give her maternity leave, so she went to an employment tribunal. It ruled that the issue had to be decided by the ECJ.

A spokesman for the Department for Business, Innovation and Skills said that there were no plans to change the law regarding people who have a child through surrogacy.

Natalie Gamble has stated 'We hope the case will make a significant difference, although it is unlikely to do so for some time'. Read more about surrogacy law at www.prideangel.com

UK High Court Judge endorses International Surrogacy

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