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Tuesday, June 30, 2015

The need for UK surrogacy law reform

Last month, in a judgment that was hailed as the first of its kind, High Court judge Ms Justice Russell ordered a mother to hand over her child to a gay couple (H v S (Surrogacy Agreement), see BioNews 801).

The facts of the case were that S, the mother, agreed to be artificially inseminated with H's sperm in circumstances that she claims H was acting as her sperm donor. However, H disputed this, submitting that S was in fact acting as a surrogate for him and his partner, B.

Ms Justice Russell ultimately ruled in favour of the two men after having considered evidence which showed that the mother had agreed to be a surrogate before conceiving the child, deciding that in the circumstances of the case it was in the child's best interests to grow up with her father and his partner.

She preceded her judgment with the following illuminating remarks:

'Very sadly this case is another example of how "agreements" between potential parents reached privately to conceive children to build a family go wrong and cause great distress to the biological parents and their spouses or partners. The conclusions this court has made about the agreement between the parties which led to the conception and birth of this child will inform the basis of future decisions the court has to make about the arrangements for the child. The lack of a properly supported and regulated framework for arrangements of this kind has, inevitably, led to an increase in these cases before the Family Court.'

The inadequacy of current UK surrogacy legislation is likely to face further judicial attack. With same-sex marriage being legalised in the UK in 2013, and a reported one in seven heterosexual couples having difficulties in conceiving naturally, surrogacy is an option that many couples are increasingly turning to in order to have a genetically related child. Indeed, it is estimated that there are now 1000 to 2000 UK children being born to surrogates each year, up from 50 to 100 in 2008. With this clear, rising demand for surrogates, a more robust framework for entering into and then enforcing surrogacy agreements is sorely needed to avoid the oft unnecessary, acrimonious litigation that is increasingly arising at the start of these children's lives.

One of the main problems of current UK surrogacy legislation is that it does not recognise surrogacy agreements as enforceable. There are three main criticisms with this state of affairs. First, in the absence of such agreements, parties are less likely to plan for the difficult issues that can arise in the surrogacy process, making reactive litigation when such issues do arise inevitable. Second, the uncertainties that shroud where the parties stand in the altruistic surrogacy process (what rights do they have?) is enough to compel some parents towards the certainty that commercial arrangements in the international arena ostensibly bring. This makes the potential exploitation of the surrogates involved in those unregulated marketplaces much more likely. Third, the current position has little regard for the autonomy of the parties involved.

Failing to expect the unexpected

One of the apprehensions often expressed by surrogates and commissioning parents is how some of the difficult issues that may arise during the pregnancy process might be resolved in the absence of an enforceable written agreement, and the fact that such agreements are unenforceable may even encourage some to shirk those issues altogether. What would happen, for example, if it were to be discovered that the child, still in utero, had a debilitating illness such that one of the parties felt an abortion was necessary while the other was opposed to this? The tragic and widely reported case of surrogate-born Baby Gammy - who was left behind with his Thai surrogate by his commissioning, Australian parents after they learned that he had Down's syndrome - highlights this issue (see BioNews 765).

Outsourcing possible exploitation

Aside from the problem of there being a relatively short supply of willing surrogates in the UK, many intended parents are uncomfortable with the fact that, if they were to use a UK surrogate legally, they would have to depend almost entirely on the altruism of willing strangers. While there is a murky debate over how much money can legitimately be given to a surrogate mother to cover her 'reasonable expenses', some would rather treat the arrangement as a 'neat' transaction and pay the surrogate for the invaluable service she is providing. Consequently, many intended parents choose to go abroad where commercial surrogacy arrangements are legal.

Rather than preventing surrogate exploitation - which the ban on commercial surrogacy in the UK seeks to achieve - the UK's failure to allow enforceable commercial surrogacy agreements at home has merely outsourced the problem to other countries. It is said that the UK accounts for over 1000 births from such transactions in India each year alone, something that the UK government is fully aware of but appears to be doing little about. Alternatively, by having clear, enforceable agreements, and measured guidelines as to levels of acceptable payments, the risks of international exploitation could be more effectively minimised.

Undermining autonomy

A final criticism levied at the status quo in the UK is that it undermines the autonomy of those involved in the surrogacy process because legal parental status is automatically attached to the surrogate. Commissioning parents may only obtain a parental order in prescribed circumstances, and only after six weeks (and no more than six months) after the child is born. The majority of those who agree to be surrogates, however, are fully aware and accepting of the fact that they will not act as the child's parent once they are born, either to begin with or at all.

Dr Kirsty Horsey, an academic at the University of Kent, has pointed out that the current law is rooted in the 'presumption of motherhood', which is perhaps now no more than a facet of our 'cultural imagination', given the ever-changing concept of the family in modern society. Importantly, Horsey points out that surrogacy legislation is inconsistent with how the law treats parental status in other pre-conception practices - those who donate gametes, for example, are not automatically presumed to be parents in the eyes of the law.

By giving weight to the 'pre-conception intentions' of who is to be the child's legal parent, UK recognition of enforceable surrogacy agreements would better respect the autonomy and clear wishes of the parties involved.

Enforceable surrogacy arrangements

In the US, where in some states surrogacy arrangements are enforceable, parties must undergo psychological screening and obtain extensive legal and medical advice before entering into a more binding surrogacy agreement. Those who undertake this process are steadfastly clear in their motivations for doing so, and fewer problems arise as a result. By contrast, in H v S, the parties informally agreed over a series of emails to enter into the surrogacy agreement, and the procedure itself took place in S's home.

H v S merely highlights the inadequacy of UK surrogacy legislation. While a court's enforcement of a surrogacy arrangement must always take into account the child's best interests, legal recognition of such arrangements would bring greater certainty to parties embarking on the surrogacy process.


Mum at the centre of RTE surrogacy documentary: 'I've no legal entitlements... in the eyes of the state I am not their mother'

Sean Malone and Fiona Whyte made national news a year ago when they returned from India with twins who were born through surrogacy. We caught up with the couple and heard of the emotional journey they've gone on and the legal quagmire they now face

The dark-eyed toddlers still attract a second look. The girl has a slight look of her father about her but otherwise they don't seem to strongly resemble their parents, who might anyway be old enough to be the their grandparents. The children are walking now, and beginning to talk and everywhere they go they are tiny curiosities. Strangers tentatively introduce themselves. Just last week the family were in Galway and as they made their way up to Salthill the question inevitably came again: "where did you get them?"

The children are walking now, and beginning to talk and everywhere they go they are tiny curiosities. Strangers tentatively introduce themselves. Just last week the family were in Galway and as they made their way up to Salthill  the question inevitably came again: "where did you get them?"

Sean Malone (55) and Fiona Whyte (53) have long since resigned themselves to the frequency of such inquiries, which are mostly good natured and supportive. Their young twins became famous last year after an RTE documentary, Her Body, Our Babies, which showed their epic journey to India to have two children through surrogacy. In the interim months the twins have become well known faces around the sleepy town of Miltown Malbay, in West Clare, where Sean owns a pub. Since the documentary was aired, he and Fiona have waged a legal battle to become recognised as the parents of their two children. The children have Indian birth certificates, with both Sean and Fiona named as their parents on the certs. Last July the couple went to court to formalise their status in relation to the children. Sean sought a declaration of parentage and guardianship. "If the court ruled in our favour that would leave Sean open to apply for passports for them," Fiona says. "That was what happened and now Sean is their legal guardian and they have their own passports."

Prior to formalising the situation in court neither Sean nor Fiona could sign any consent on behalf of the twins, instead the state was considered to be the twins' legal guardian. Despite Sean now being their guardian, the legal limbo the children find themselves in presents a number of potential complications. If they were injured in an accident or had to have a life threatening operation Fiona would be unable to sign the hospital forms giving parental consent. Sean would have to be present. "I've no legal entitlements or rights," Fiona summarises. "In the eyes of the state I am not their mother."

The law in this area is in a state of flux. Last November the State won a Supreme Court appeal, with the court ruling that the genetic mother of twins born to a surrogate was not entitled to be registered as their legal mother on their birth certificates. Enda Kenny recently said that there would be no legislation on surrogacy before the general election and the official inaction is a source of frustration to both Sean and Fiona.

"Minister Varadkar, in the wake of last years' Supreme Court ruling, said this February that he would be introducing legislation, but where that is at right at this moment nobody knows," Fiona says. She felt that the prominence that issues around surrogacy received in the run up to the gay marriage referendum were by-and-large unhelpful: "I heard (senator and vocal no campaigner) Ronan Mullen say that when a child born by surrogacy is taken away from its birth mother that is the last time that child will know a mother's love and I just thought, oh my God that is despicable to say that. Does that mean adoptive parents don't love their children like biological parents? We went through so much to bring Donal and Ruby into the world and to bring them home. They are our children. But the way some families are created is not as simple as others."

By contrast with the huge undertaking that brought Donal and Ruby into the world there was an organic simplicity to the way Sean and Fiona met. They grew up three doors down from each other in Miltown Malbay and played together on the street as children. As they grew up, they went their separate ways, with Fiona moving to Dublin to train as a nurse and Sean going to work for Posts and Telegraphs. Both went on to get married and, eventually divorced, from other people. For much of her adult life Fiona lived in Castleknock in Dublin with her family - she has 21-year-old and 24-year-old sons. Sean has a son, Tomas, who is 20-years-old, and has special needs. "I kept coming back to see my mother," Fiona recalls. "Sean opened a pub in the town, and naturally I came in for a pint. We rekindled a friendship which in turn led to a relationship."

I wonder if the fact that they both had children with other people lessened the imperative for them to have a child together. "We were both very fortunate to have children already. Our three sons are so important to us and we love them dearly," Fiona explains. "But we really wanted to have a child together. We're soul mates and the natural progression in any relationship is to try to have a child together and sometimes you do go to any lengths to achieve what you want in life."

The couple initially tried to have a child through IVF. They were treated at a clinic in Spain and were successful on the first attempt, but Fiona miscarried. They tried four more times but each time they were unsuccessful. Adoption was not an option, assuming they wanted a baby: during the process they were informed by social workers here that due to their age they would only be eligible to get an older child, possibly a child with special needs.

They saw no other option but to go down the road of surrogacy. They briefly considered America but it would have been cost-prohibitive to do it there. In some European countries, such as the UK, you have to be domiciled in the country to undertake a surrogacy there. The Ukraine was briefly considered, but dismissed, because one of the criteria for there was that you had to be married, which they were not at that point.

In the end Sean and Fiona opted to try to find a surrogate in India, with Fiona making preliminary inquiries online and managing to speak to one person who had gone to India. The couple opted to travel to the reputable and regulated Corion Fertility Clinic in Mumbai, India, where Sean gave a sperm sample and they selected the surrogate - Shobha - whose eggs were not used.

"There was a number of Indian ladies waiting to be chosen. We asked which one was the most well-prepared medically," Fiona says of the selection process for the surrogate, Shobha, who came from a poor run-down "colony" of Mumbai. The couple chose the egg donor from a number of profiles sent to them. They never met the donor, however they were made aware through the clinic that she was 25 and, when shown the profile, Fiona saw that both her age and her hormone levels were perfect for donating eggs.

The agreement was that Shobha would make around €5,000 out of the €30,000 that Sean and Fiona paid the clinic. For many watching the documentary there was squeamishness around the economic inequities that brought Shobha to the difficult decision to carry someone else's child. "From that point of view my conscience is 100pc clear as to how she was treated," Sean says. "(The money) will mean, for instance, that her children could rise above where she came from. She would be able to use the money to educate her children and buy a new and better place for her family to live. They are trapped in a lifestyle of poverty there. We were told that this was as much as she could expect to earn in 10 years."

Surrogacy is legal but mainly unregulated in India and the situation there has been described as something of a wild west, with surrogates subject to exploitation by middlemen, clinics and would-be parents. However Sean and Fiona say that every aspect of Shobha's surrogacy was carefully monitored and that they were happy with the standards of the clinic. The natural bond that occurs between a woman and child during and after childbirth was surmountable in this case, Sean and Fiona say, by the contract and procedures that the clinic put in place. "The criteria for the women who take part is that they have to have already been mothers, so they know what childbirth entails," Fiona explains. "In our situation Shobha would have been fully aware of this and the clinic would have provided counselling to her. Everything would be explained to her in legal terms in her own language. She and her husband jointly made the decision."

The documentary showed the fairly sparse living conditions that the surrogates in the Mumbai clinic were housed in but Sean and Fiona say they had no qualms about the quality of the care she received. "We were allowed to Skype with her at any point", Fiona says. "We were allowed to meet with her. All the medical reports came back to us very quickly. They really put our minds at ease."

Perhaps the most harrowing part of the documentary dealt with the difficult, almost Sophie's Choice-type situation, that Sean and Fiona were faced with. The background to it was the information the couple were given to the effect that in order to give the surrogate the best chance of successfully carrying a baby, three embryos would be implanted in her. They were also told that in the unlikely event that all three embryos developed into foetuses there would have to be what was termed a foetal reduction; effectively one of the foetuses would be aborted. The reason given for this was that carrying triplets would have presented too great a health risk to the mother and the babies. "Because of our age it was the last attempt for us", Fiona says.

"We were trying to optimise our chances and we took advice in relation to that. We were told that the three embryos would give the best chance. When we were told it was a triple pregnancy there was a chance of what's termed spontaneous reduction (that the woman would miscarry one baby) and we had hoped that would happen. For us it was so emotional, because we had tried IVF for so long with two embryos and were unsuccessful. We asked if there was any possibility of going forward with three and we were told no. We didn't have any say in that." (She later points out that there may be scenarios where the surrogate would be permitted to carry three babies to term).

After the twins were born Fiona sneaked into Shobha's room in violation of the clinic and hospital guidelines. "You're not supposed to see her after the birth, but Fiona went up to the ward anyway," Sean recalls. "There was one part of the documentary where I expressed concern that (the consultant-in-charge) speaks in a very abrupt manner (about Shobha) but I think that's just the manner that professionals have over there. They would have spoken to us and staff members quite abruptly too, for example."

Fiona and Sean were allowed to see the children immediately. "We were told 'this is the boy and this is the girl'" Fiona recalls. "Donal was taken down to ICU for observation. We didn't get to hold him or Ruby until the following day. That they were born and they were healthy and everything went well - all that brought huge relief. And then there was the terrifying thought of 'well now we're in charge of these two very vulnerable babies and all the responsibility of that and would we be able?' And then there was just this huge surge of love because these are our babies, we brought them into the world and they're ours."

Getting the children out of India was a complex process. "The Irish government and the embassy in Delhi kept moving the goalposts; they wanted something today and then something else tomorrow", Fiona recalls. "This took place between the passport office in Dublin and the Irish embassy. We were jumping through hoops and it set us back by 10 days".

Shobha and her husband were at home at this stage and they had to be brought back to the clinic to sign more affidavits. As the red tape was being sorted out Fiona stayed in the hotel room looking after the babies while Sean did most of the traipsing around the various offices in the huge, steaming metropolis of Mumbai.

The couple anxiously waited while DNA samples were sent first to Ireland, then England for testing, then the results were sent back to Ireland and from there back to India. And as they applied to the Foreign Regional Registration Office in Mumbai for their exit visas which would allow them to exit India with the children the whole city was on the brink of shutting down for a week for a Hindu festival but in the nick of time they managed to get their travel documents in order.

After all the drama and difficulty of the previous months and years the flight back to Ireland felt like the sweetest of releases for the couple. "In London we waited for the connecting flight and then the flight back to Shannon was something I will never forget," Sean recalls.

"Our family and friends were there to meet us, it was morning time and it was Ruby and Donal's first experience of rain. We arrived back into Miltown Malbay and they were unveiling a statue of (famous uileann piper) Willie Clancy. Someone once asked me, 'when will you celebrate: when you know the pregnancy has worked? Or will you celebrate when you're on the flight out? Or will you celebrate when they're born?' But in fact we didn't really celebrate until we were coming back into Shannon on that last flight. The staff on the plane gave us a glass of champagne. And I think that was the first moment we finally relaxed."

The couple say that they intend to be open and honest with Donal and Ruby as soon as is practical. And what if the children at some point wish to track down Shobha? "They won't need to track her down, we have her address", Fiona responds. "If they feel that is what they need to do we'll support them every step of the way. I did ask for her address, I made a point of that. But it's important to note that there is no genetic connection between Shobha and Donal and Ruby."

What about the energy it takes to take on two new babies in your 50s; I wonder if they have found that daunting? "Not at all, they've slept through the night from the start, and anyway we have a lot of energy," Fiona says. "We work and have a farm and get up every morning. We're tired but I don't think any more so than a younger couple."

The couple say they have had numerous Irish couples reaching out to them since the documentary aired. The legal quagmire that the children still find themselves in needs urgent attention, Fiona says, however she also emphasises that resolving the legal situation will be merely official recognition of a family that is as real and valid as any other: "They are our babies, we brought them into this world, we're responsible for them, and we love them more than anything. That's the reality, whether the government recognises it or not."


Monday, June 29, 2015

LDP OKs Outline of Special Legislation on Surrogacy

Tokyo, June 26 (Jiji Press)--Japan's ruling Liberal Democratic Party adopted on Friday the outline of special legislation to treat surrogate mothers as the real mothers of the children they deliver under the Civil Code.

   At present, the Civil Code does not acknowledge host surrogacy and, therefore, has no clause stipulating parent-child relations in such cases.

   According to the outline, approved at a joint meeting of the LDP's project team on assisted reproduction technologies and Judicial Affairs Division, surrogate mothers and women who give birth after using donated eggs will be legally recognized as the mothers of the babies they carry and deliver.

   The outline also clarifies that men whose wives who give birth after conceiving with donated sperm will be treated as the babies' fathers.

   After the meeting, Toshiharu Furukawa, the project team leader, told reporters that he wants to make explicit rules on parent-child relations in order to end confusion caused by a series of surrogacy deliveries abroad.


With ruling on marriage equality, fight for gay families is next

With the Supreme Court's marriage decision in Obergefell vs. Hodges, one might think that equality for gay families has arrived. But that would be a mistake. The court's ruling could work to produce new conflicts and intensify old ones. The danger arises because marriage equality doesn't immediately or necessarily erase cultural and legal attachments to biological, dual-gender parenting.

Consider the position of David Blankenhorn, head of the Institute for American Values and star witness in favor of Proposition 8 when California's gay-marriage ban went on trial in 2010. Back then, Blankenhorn justified such bans based on "[t]he need … to make it as likely as we can, that the biological parents are also the social and legal parents." In 2012, Blankenhorn announced a change of heart on same-sex marriage, but he still hoped "both gays and straight[s]" could agree that "children born through artificial reproductive technology [have] the right to know and be known by their biological parents."

Same-sex couples often have children through assisted reproductive technologies. Research from the Williams Institute at UCLA shows that lesbian and gay people are much more likely than heterosexuals to be raising nonbiological children. By continuing to emphasize biological family ties, Blankenhorn could endorse same-sex marriage yet maintain the second-class status of families formed by same-sex couples. Today, the Center for Marriage and Families at Blankenhorn's institute is advocating significant restrictions on reproductive technologies. His position reveals how old arguments against same-sex marriage may find new life in refusals to accept and acknowledge married same-sex parents.

lRelated Same-sex marriage ruling creates new constitutional liberty
Same-sex marriage ruling creates new constitutional liberty
What's known as the marital presumption is emerging as a battleground. Traditionally, a husband is legally presumed to be the father of a child born to his wife. But some states are resisting the presumption's application to lesbian spouses. In one high-profile case, officials in Iowa refused to list the biological mother's wife on the birth certificate of the child they had conceived through donor insemination. Iowa officials argued that the law "recognizes the biological and 'gendered' roles of 'mother' and 'father,' grounded in the biological fact that a child has one biological mother and one biological father." Essentially the state excluded the nonbiological mother because she was not a biological father.

The situation for gay men is different, and even more daunting. While lesbian couples have long used donor insemination to have children, gay male couples have increasingly turned to surrogacy, and most commonly gestational surrogacy, in which the surrogate carries a child genetically related to another woman — an egg donor — and one of the men.

Under traditional parentage principles the birth mother would be the presumed mother of the child and her husband, if she were married, would be the presumed father. Some states have accommodated the complexities of surrogacy. They leave the surrogate mother out of the parentage picture and recognize the intended parents as the legal parents without requiring that they adopt the child. That works for gay male couples; even if states require the intended parents to be married, gay couples can now meet that requirement.

But states can still find ways to exclude same-sex couples. For example, Arkansas law uses gendered language. It considers the parents in a surrogacy situation to be the "biological father and the woman intended to be the mother." Last year, Louisiana lawmakers passed a bill, vetoed by Gov. Bobby Jindal, that would have allowed gestational surrogacy only for couples who do not need donor egg or sperm — by definition, foreclosing surrogacy for gay couples, even when married.

Still other states reject surrogacy comprehensively. New York prohibits it. New Jersey — home of the infamous Baby M decision, which recognized a "traditional" surrogate (her own eggs were fertilized) as a child's mother, despite her agreement to the contrary — remains hostile to compensated surrogacy. In 2009, a New Jersey court recognized a gestational surrogate as a legal parent, over the objection of the biological father and his same-sex partner.

Fortunately, even though marriage equality doesn't immediately erase all attachments related to biological, dual-gender child rearing, it points us in the right direction. In the Supreme Court's majority opinion, the justices validated same-sex parenting and even premised marriage equality on the vitality of gay families. After declaring that a "basis for protecting the right to marry is that it safeguards children and families," Justice Anthony Kennedy explained that "same-sex couples provide loving and nurturing homes to their children, whether biological or adopted." Relying on Williams Institute research, he noted that "hundreds of thousands of children are presently being raised by same-sex couples." The majority affirmed a model of parenthood based on chosen, functional bonds rather than biology alone.

At the state level, we have already seen the effect of earlier marriage equality laws. In the marital presumption dispute described above, the Iowa Supreme Court ultimately found that marriage equality meant that the state must treat same-sex couples just like "spouses and parents in an opposite-sex marriage." The nonbiological mother got her parentage rights and the purpose of the marital presumption was made clear: "identifying a child as part of [her] family," not identifying the biological father. Biology and gender took a back seat to actual family formation.

Marriage equality also sheds light on how to resolve conflicts over surrogacy. States that reject surrogacy and refuse to recognize the intended parents perpetuate the unequal treatment of same-sex families, allowing biological and gendered notions of parenthood to dominate. It seems illogical to premise marriage equality on the vitality of gay families and yet erect obstacles to same-sex couples' attempts to parent.

The battle over LGBT equality is far from over. But the court's embrace of marriage equality takes a stand for sexual-orientation equality, and it should mean that ultimately lesbian and gay families will receive equal treatment under the law.

Douglas NeJaime is a law professor at UC Irvine. He joins the faculty of the UCLA School of Law at the end of the month, where he will also be faculty director of the Williams Institute.


Surrogacy Law Update (June 2015)

This update will deal with four cases that have furthered the ever growing debate concerning the law related to surrogacy. The cases handed down continue to generate public and media interest, as well as discussion amongst legal commentators.

Single intended parents
One of the frequently asked questions is what the legal position is in relation to single intended parents.  Whilst the amendments to the HFEA 2008 have widened the availability of parental orders to cohabitating couples (couples in a long and enduring relationship), same-sex couples, as well as married couples (s54(2)) as  provided for in the original 1990 Act, those amendments have fallen short of extending the availability of parental orders to single intended parents. The parallel that is often drawn is that if single persons are able to adopt, so too should they be able to have a child through surrogacy and obtain appropriate legal orders that afford them parental rights.

This issue came before the court in B v C (Surrogacy – Adoption) [2015[ EWFC 17, in which Theis J dealt with the first reported case of its kind, concerning a single intended father who had had a child through a surrogacy arrangement where his mother was the gestational surrogate. All of the parties concerned had been through individual counselling and the treatment itself was undertaken at a licensed fertility clinic. At the time of the child's birth the child's legal parents were the gestational surrogate and her husband.

Dealing with the relevant legal framework, Theis J sets out the provisions of the HFEA that affords legal parentage to the gestational surrogate  s33(1) and her husband s 35(1). Plainly the provisions of s54(2) prevent the intended father from being able to apply for a parental order.  However, the court was satisfied that under the provisions of the Adoption and Children Act 2002 it was lawful and in the child's best interests that an adoption order was made.

An interesting feature of the case was that since the intended father was treated in law as a relative of the child (i.e. his legal brother),  no criminal offence was committed in the child being placed for adoption with his intended father. Section 92 of the Adoption and Children Act 2002 states:

"(1) A person who is neither an adoption agency nor acting in pursuance of an order of the High Court must not take any of the steps mentioned in subsection (2).

(2) The steps are—

(a) asking a person other than an adoption agency to provide a child for adoption,

(b) asking a person other than an adoption agency to provide prospective adopters for a child,

(c) offering to find a child for adoption,

(d) offering a child for adoption to a person other than an adoption agency,

(e) handing over a child to any person other than an adoption agency with a view to the child's adoption by that or another person,

(f) receiving a child handed over to him in contravention of paragraph (e),

(g) entering into an agreement with any person for the adoption of a child, or for the purpose of facilitating the adoption of a child, where no adoption agency is acting on behalf of the child in the adoption,

(h) initiating or taking part in negotiations of which the purpose is the conclusion of an agreement within paragraph (g),

(i) causing another person to take any of the steps mentioned in paragraphs (a) to (h).

(3) Subsection (1) does not apply to a person taking any of the steps mentioned in paragraphs (d), (e), (g), (h) and (i) of subsection (2) if the following condition is met.

(4) The condition is that—

(a) the prospective adopters are parents, relatives or guardians of the child (or one of them is), or

(b) the prospective adopter is the partner of a parent of the child."

Breach of s92 is a criminal offence under s93 of the Adoption and Children Act 2002.  As Theis J observed:

"32. What this case highlights, is that but for the close familial relationship between B and C, their actions would have breached these important statutory provisions and potentially left them liable to a criminal prosecution under both s.93 ACA 2002 and s.70 CA 1989.

33. It is therefore imperative that single parents contemplating parenthood through surrogacy obtain comprehensive legal advice as to how to proceed as adoption is the only means to ensure that they are the only legal parents of their child. The process under which they can achieve this is a legal minefield, they need to ensure that all the appropriate steps are undertaken to secure lifelong legal security regarding their status with the child."

Arguably this case is yet another example of the lack of legislative provision regarding surrogacy law in the UK. The reality in a case such as this is that the science and the medical  technology are available to enable a single individual to embark upon a surrogacy arrangement without even  leaving the jurisdiction, so it must follow that there should be the appropriate legal framework without having to adopt. In this case, but for the familial relationship between the intended father and the child, it would have been difficult for the intended father to obtain an order that would offer the same degree of permanence as adoption or parental orders do.

Save for statutory reform or a Re X style 'reading down' of s54 of the HFEA the alternative option would be s8 Children Act 1989 orders for the child to live with the single intended parent and prohibitions on the surrogate mother's exercise of parental responsibility, vesting exclusive exercise of parental responsibility in the single intended parent, akin to the approach adopted by Eleanor King J (as she then was) in JP v LP & Others [2014] EWHC 595 (Fam). Of course, the distinction between the approach adopted in JP v LP arose in difference circumstances and did not concern a single parent.

Service, consent and payments
In R and S v T (Surrogacy: Service, Consent and Payments) [2015] EWFC 22, the application for parental orders concerned twin boys aged 18 months following a commercial surrogacy arrangement in the Ukraine.

Section 54 provides that the surrogate mother should have 'freely, and with full understanding of what is involved, agreed unconditionally to the making of the order' and that consent should be given more than six weeks after the birth of the child (s 54 (6) and (7)). The applicants relied upon a document signed by the surrogate mother over six weeks after the twins' birth. The document confirmed that the  applicants were the biological parents (the intended father was the biological  parent  of the children); the applicants had been registered as the children's parents in the Ukraine; the surrogate had no parental rights to exercise over the children; all parental rights concerning the children had been vested in the applicants; the surrogate consented to the children being removed from Ukraine;  and she consented to the children being 'naturalised in Great Britain'. The document was witnessed by a notary who was able to verify the  signature.  A further document, signed by the surrogate, purported to be the surrogate's agreement to the making of a parental order.

The court had to consider whether the evidence as to consent satisfied the requirements under s54(6) i.e. that the surrogate had given consent with 'full understanding'. Whilst there was evidence that the documents were indicative of consent,  the court found that it could not be satisfied that the surrogate had 'freely, and with full understanding of what is involved, agreed unconditionally to the making of a parental order' as required by s 54(6).

In those circumstances the court went on to consider whether  it could be said that the surrogate mother could not be found under s54(7) and whether the applicants had taken reasonable steps to locate her.  Theis J concluded that the applicants had taken all reasonable steps  to locate the surrogate and that the court could therefore dispense with her consent.

In respect of payments, the difficulty that arose was that there was no clear evidence as to how much the clinic had paid the surrogate, and the clinic concerned  had refused to provide information. There was also the issue that the surrogate could not be found.  The only document available to the applicants suggested that the surrogate received the equivalent of  EUR 200.00 per month (i.e. EUR 1800 in total), which equated to significantly higher than the average monthly salary in the Ukraine. Applying the well established principles from X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) the court was satisfied that the applicants had acted in good faith and had not acted in a way to get around the authorities.

The court went on to make  parental orders, however,  as Theis J observed in her judgment, the case serves as yet another salutary reminder of the importance of intended parents seeking specialist legal advice before embarking on surrogacy as a route to parenthood.

Surrogacy agreements
Surrogacy agreements are unenforceable in the UK. So what happens when there is a disagreement about where the child should live? In H v S (Surrogacy Agreement) [2015] EWFC 36, Russell J had to deal with cross applications for section 8 orders concerning a child conceived as a result of an agreement between the birth mother and the father and his same-sex partner.

The legal issue at the crux of this case was the living arrangements for the child, which was ultimately a welfare decision.  Russell J observed:

"7. I have been referred to numerous cases including that of Re N (A Child) [2007] EWCA Civ 1053, a case which has similar facts to this one, in which the Court of Appeal endorsed the following approach as an impeccable statement of the issues the trial judge had had to decide:

'…the test here is…as between the two competing residential care regimes on offer from the two parents (with their respective spouses) and available for his upbringing which, after considering all aspects of the two options, is the one most likely to deliver the best outcome for him over the course of his childhood and in the end be most beneficial. Put very simply, in which home is he most likely to mature into a happy and balanced adult and to achieve his fullest potential as a human?' (emphasis added)

The court heard evidence over a 5 day period and found, inter alia, that the mother had "..deliberately misled the Applicants in order to conceive a child for herself rather than changing her mind at a later date."

Saliently, Russell J concluded:

"125. It is not the function of this court to decide on the nature of the agreement between H, B and S and then either enforce it or put it in place. It is the function of the court to decide what best serves the interests and welfare of this child throughout her childhood. It is, however, a fact that M was not conceived by two people in a sexual relationship. The pregnancy was contrived with the aim of a same-sex couple having a child to form a family assisted by a friend, this was ostensibly acquiesced to by all parties at the time the agreement was entered into and conception took place. Therefore M living with H and B and spending time with S from time to time fortunately coincides with the reality of her conception and accords with M's identity and place within her family."

The implications of this case highlight that whilst there was much media interest in the case, it was essentially a case based on welfare.

Human Fertilisation and Embryology Authority
Away from the Family Court, in The Queen (on the application of IM and MM) v Human Fertilisation and Embryology Authority [2015] EWHC 1706 (Admin) the Administrative Court was concerned with a judicial review regarding a decision not to allow frozen eggs from a deceased woman to be exported to the USA to be then used  by her surviving mother. The claimants in the judicial review, the deceased woman's parents,  had identified an American clinic which was able to offer treatment using an anonymous sperm donor. The HFEA in 2014 had decided that there was inadequate evidence that demonstrated that the deceased woman wanted her eggs to be used in the way her parents had sought.

Whilst the deceased daughter had given consent for her eggs to be stored for use after her death, she had not completed separate forms outlining how they were to be used.

Ouseley J dismissed the claimants' claim.

Whilst this case is a unique case on its facts, it does raise the issue not only of how embryos and gametes should be stored, but what should happen to them in certain circumstances.  It is likely that similar cases will arise in the future as increasingly more people use assisted reproductive technologies (ART) as a route to parenthood.

What should happen, for example, on the separation of a couple who have embryos stored? I recently attended an American Bar Association in California where these issues were being discussed.

One session in particular that stood out, entitled "What to do when it's ova", had the assistance of an eminent psychologist who emphasised the importance of counselling for couples embarking on ART as a route to parenthood before they even meet a doctor or lawyer.

The general theme appeared to be "prevention is better than cure" and that it is important for couples to know where they stand in the event of relationship breakdown  - e.g. who gets to keep the sperm, eggs, embryos and what use may be had of them? (all questions that are being frequently asked on divorce questionnaires where there is no prior agreement)  The Americans like to describe this as "front loading conversations". What emerged repeatedly in this seminar from lawyers from all over America was the practice of fertility clinics misinforming would-be parents of their legal rights and their legal positions generally, leading to an inevitable legal car crash when things do not go as expected.

The use of contract law as a paradigm for resolving sensitive and profoundly human disputes such as embryo ownership post breakdown seems, to the English lawyer, the quintessential American dispute straight out of an episode of 'The Good Wife'. However, only recently this month a Chicago appeals court ruled 2-1 that a woman whose fertility was destroyed by cancer treatment could use embryos she created with her former partner, despite his objections. Of course, there have been a few prominent cases in this jurisdiction dealing with similar issues (e.g. Evans v. the United Kingdom  - Application no. 6339/05) – 10 April 2007); however, the prevalence of these cases in America is, unsurprisingly, much greater.

In short, the message from psychologists and counsellors is that conflict is less likely where the parents have thought about the process with an independent professional. In some cases where couples have undergone counselling, it is not unheard of for the psychologist or counsellor to recommend against the couple embarking on the process (e.g. instability in the relationship or differing views on what should happen in the event of the parties separating).

As ever, the recent string of cases all highlight that where children are born through surrogacy arrangements, their welfare will always be the court's paramount concern. It is estimated that there are as many as 2,000 children a year born through surrogacy arrangements (mostly overseas) to British parents; however CAFCASS report that only 241 applications were made for parental orders last year. The number of people applying for parental orders has increased dramatically since the amendments to the HFEA 2008. Nevertheless, as Theis J observed speaking extra-judicially at the International Academy of Matrimonial Lawyers Surrogacy Symposium in London last month, the real concern is where people do not make applications. The difficulties that may ensue when parents are not legally recognised, for example, testamentary issues when parents separate, is something which the courts may have to deal with in the future.


Friday, June 26, 2015

Surrogacy - The mothering instinct

The birth of a child has always brought joy to a household. Women often deem it a privilege to bear a child. Then again, not all women are blessed with the luck.

Couples often resort to surrogate births with a desire to establish a genetic link with the foetus. While some view the procedure from an objective point of view, reality showcases otherwise. To begin with, surrogacy is surrounded by several issues pertaining to privacy. Many aspects of a surrogacy contract are confidential. As a result, the grey areas continue to keep people wondering about the credibility of such methods.

In the Indian scenario, surrogates primarily belong to two categories. The participants in such procedures either hail from economically backward backgrounds or share a deep and close association with the couple.

Experts say that for years surrogacy has been associated with a negative connotation. “A lot of people do not look at surrogacy as an empathetic act performed on humanitarian grounds. In short, the act has often been associated with several negative connotations,” said Psychologist Zaileshia.

Counseling the surrogate

Zaileshia explains that mothering is an instinct. Irrespective of the surrogate being known to the couple or not, she is bound to experience several changes in her behaviour during the course of the pregnancy. “Although the woman is not giving birth to a child of her own, her body undergoes several hormonal changes during the gestation period. Thus, she becomes stressed out and faces several emotional problems,” she said. It is thus, likely that a surrogate mother would develop a bond with the child post the birth. Hence, counseling does play a significant role in the entire process.

Zaileshia further adds, “A woman is stressed out from the moment she is asked to make up her mind about being part of the procedure. The pre-contemplation aspect of surrogacy is a crucial for eventually, the entire process depends upon the willingness of one person.”

The most common aspect that is addressed while counseling the surrogate is post partum depression.

Depression, as Zaileshia said, is anger turned against oneself. Postpartum depression refers to that form of depression experienced by women after childbirth. The symptoms include sadness, low energy, changes in sleeping and eating patterns, a reduced desire for sex, episodes of crying, anxiety, and irritability.

Post the delivery of the child, a woman develops an urge to feed the baby. This is primarily due to the hormonal changes in the body. While the desire is satisfied almost instantly in the case of normal pregnancies, surrogate mothers are unable to do so. “This state of deprivation, leads to anger, sadness and eventually guilt. It is at this state that women are likely to act in a most unexpected manner. They might make efforts to obtain the child or would even be an extreme state of anxiety as well as depression. Thus, surrogates have to be counseled and sensitised,” she elaborates. She also agreed that lack of adequate compensation for the act could also intensify the levels of depression as the woman has not only dedicated her time to the pregnancy, but her body and health as well.

Surrogate mothers are also likely to experience ‘reactive depression.’ This depression rises out of an act that they have been part of. For instance, the woman is likely to wonder as to why she chose to be part of the pregnancy and how comfortable or not life would have been had she not agreed to do so.

Family history – a key clue

Zaileshia also stated that the resilience levels towards depression vary from person to person. A person cannot become easily aware of their psychiatric illnesses. It is, thus, best for experts to explore the surrogates family history for previous records of mental illnesses so as prepare themselves better in the event of a complication.

Stories that showcase all that is grey

Zaileshia narrates two instances of surrogacy that she had been associated with.

A means to a better life

'I remember this lady who hailed from a village in Karnataka. She was illiterate and she had to support her family and children. It was rather difficult for us to identify what she would have been thinking about the whole act. She was helpless and thus she sought the opportunity that could help her deal with her financial stress. The child was handed over to the parents immediately. She, then, returned to her village upon receiving the compensation so promised. May be the theory of out of sight and out of mind helped her dealing with the emotional stress to a small extent. But it is not all as simple.'

A good deed

Zaileshia narrated an incident where the act of surrogacy was purely altruistic: This couple from Karnataka shared a close bond with a lady friend. The husband, wife and the friend were educated and were doing well.

The couple had met with an accident. Post the accident the lady had to have her uterus removed. They wanted to have a child and they had approached their friend in this regard. Having such a deep bond, the friend volunteered to get pregnant. The child was handed over to the parents immediately after childbirth. However, in this case, the emotional stress is likely to take longer to fade away for the surrogate would hear of the child’s progress on a regular basis.


There are several aspects of human life that neither medical science or the law of the land can explain. An act such as surrogacy, while altruistic is certain cases, is more complicated due to its vast grey areas. Perhaps sensitisation and research in this field could be instrumental in the tackling the issue at hand.


Thursday, June 25, 2015

Baby boy abandoned in India by parents who kept his twin sister but left him behind ‘as they already had a boy and couldn’t afford twins’

  • Twins were born in 2012, in a well-known women’s hospital in New Delhi 
  • Afterwards the couple returned to Australia with just the girl 
  • Australia has some obligation to track down child, says lawmaker 
  • Calls have been made for couple to be charged with child abandonment
  • Australian officials at the High Commission said the adoption was legal 
A western Sydney-based couple involved in a twins commercial surrogacy contract in India where they left behind a perfectly healthy boy while returning to Australia with his sister, could now face investigation by authorities.

The twins were born on November 22, 2012, in a reputable women’s hospital in New Delhi. However, after the birth the couple told the Australian High Commission staff there that they would be returning to Australia with just the girl.

The reason the couple allegedly gave was because they already had a boy and could not afford to look after twins.

ABC reports that the Sydney couple – allegedly the biological father of the twins is a corporate accountant with a multi-national corporation and his wife had her own childcare business – could be investigated by police over the matter.

‘I would imagine there'd be a number of reasons why the police should be involved and obviously the welfare authorities as well,’ Chief Justice of the Federal Circuit Court, John Pascoe, said.

‘I would have thought also that Australia has some obligation to track down and look after the welfare of the child that has been left behind.’

On Tuesday night ABC's Foreign Correspondent program also revealed that senior legal figures in India have also got their concerns over what happened.

One senior Indian lawmaker even said he wanted the couple charged with child abandonment and extradited to India.

'It's an offence in India, it's punishable [by] up to seven years imprisonment,' Indian Supreme Court senior counsel Shekar Nephade told ABC.

'If the Australian High Commission had information about the child, being that of the Australian couple, I'm afraid what they have done is improper.

'I would describe it as aiding and abetting the Australian couple abandoning the other child.'

A Department of Foreign Affairs confirmed that Australian officials at the High Commission said the adoption was legal and that it was now a matter for India's legal system.


Crazy in Love: Beyoncé and Jay-Z expecting a second child via surrogate reports claim

If the latest reports are to be believed, Beyoncé and Jay Z are due to welcome a second child via a surrogate.

According to In Touch magazine, the 33-year-old singer is enlisting the help of a surrogate as she and her music mogul husband add to their family.

Beyoncé gave birth to her daughter Blue Ivy, 3 years ago and the couple are now said to be eager to give her a brother or sister.

An insider reportedly told the magazine that the music power couple "are in the process of having a baby through a surrogate".

In her documentary, Life is but a Dream, Beyonce had spoken of her grief after suffering a miscarriage. It's believed her previous loss prompted the decision to have a child by a surrogate.

"They were trying for several months, but Beyoncé was having trouble. She was scared about another high-risk pregnancy, so surrogacy became the best decision for them.

"They didn't want to take any more risks, so after all the ironclad legal documents were drawn up, it took them about two months to find the perfect woman to carry their child," the insider tells the magazine. "The surrogate is still in the early stages of the pregnancy, so they have yet to announce it to the public."

The couple, whose marriage has been the focus of ongoing speculation, are also said to be hopeful that a new baby will save their marriage.

Rumours of a split intensified following the infamous elevator spat, in which Solange Knowles was caught on CCTV video attacking her brother-in-law.

"Jay's been pushing Beyoncé into having another baby to bring them closer together," the source claims. "But he's also been very protective of her and didn't want her to take any chances. He wants to make sure everything goes smoothly."

The couple have also been plagued by reports of infidelity. Rymir Satterthwaite, who was first linked to the hip hop star in 2010, filed a civil lawsuit against the 99 Problems hitmaker in December 2014 ,claiming that he is the music star's lovechild.

In 2011, allegations that the rapper had a child with Trinidad model Shenelle Scott surfaced, overshadowing wife Beyoncé's announcement that she was pregnant with the couple's first child.

"Shenelle told me that Jay-Z gave her $1m to keep her mouth shut. My understanding is that he's paying her child support," a source told Star magazine at the time.

Jay Z has never publicly addressed the love child claims.

Beyoncé and Jay Z married in secret, in 2008. The pair had been dating for six years, but kept their wedding plans firmly under wraps even denying they were married.


Wednesday, June 24, 2015

Judge calls on NSW Police to investigate commercial surrogacy case where baby was left in India

MARK COLVIN: One of Australia's most senior judges says New South Wales police should investigate a case where a twin boy born via a commercial surrogacy deal was left in India.

This evening the ABCs Foreign Correspondent program will air further revelations about the case, including details about the identity of the Western Sydney-based couple who left the healthy boy while returning to Australia with just his sister.

The case unfolded with the full knowledge of Australian High Commission staff in New Delhi and Government officials in Canberra.

South East Asia correspondent Samantha Hawley reports.

SAMANTHA HAWLEY: The twins were born the November the 27th, 2012 at one of the most expensive women's hospitals in the Indian capital, New Delhi.

An in-depth investigation by the Foreign Correspondent program will reveal the healthy babies were separated after the Western Sydney-based Australian parents returned to home with just the baby girl, leaving the boy behind.

It's a case that's shocked some of Australia's most senior judicial figures, including the Chief Judge of the Federal Circuit Court, John Pascoe.

JOHN PASCOE: I would have thought also that Australia has some obligation to track down and look after the welfare of the child that has been left behind.

SAMANTHA HAWLEY: The couple told High Commission staff they couldn't afford both children and wanted a girl, and that close family friends would adopt the boy.

Although Australian officials later discovered the Indian couple who took the boy were not close family friends as they'd been told.

The biological father of the children is a corporate accountant with a multinational firm.

Until recently his wife also ran her own child care business.

Judge Pascoe says they broke the law in New South Wales where it's illegal to enter into commercial surrogacy arrangements.

JOHN PASCOE: And I would imagine there'd be a number of reasons why the police should be involved and obviously the welfare authorities as well.

SAMANTHA HAWLEY: In India too senior legal figures are concerned.

Senior counsel in India's Supreme Court, Shekhar Naphade tells the program he wants the couple to be charged with child abandonment in India.

It's an offence in India he says punishable up to seven years in prison.

The Foreign Affairs Minister Julie Bishop says the child was formally adopted in India.

The Indian surrogacy doctor for the Australian couple has told Foreign Correspondent up to four embryos may have been implanted in the surrogate mother and the Australians never made clear that they wanted just one child.

The Chief Justice of the Family Court Diana Bryant says she was told by distraught High Commission staff in New Delhi that money had allegedly changed hands between the Australians and the Indian couple who took the child, which if true amounts to child trafficking.

She's among those calling for an inquiry into the surrogacy industry.

DIANA BRYANT: I think there are a number of different things that we could do.

I have suggested that legalising commercial surrogacy in Australia is one of them, but there are other things that could be done as well.

I know not everybody supports that but an inquiry enables all the views to be put forward and discussed.

SAMANTHA HAWLEY: The twin boy left in India is entitled to Australian citizenship but it has never been applied for.

A spokesman for the Department of Foreign Affairs and Trade says his welfare is a matter for India.

The Australian Federal Police say they have never been asked to look into the case.

A spokesman for the Attorney-General George Brandis says an inquiry into surrogacy is being considered.

This is Samantha Hawley reporting for PM.


Surrogacy: Govt plans to impose monetary bond on foreigners

In proposed tighter norms for foreign couples who come to India to commission surrogacy, the government plans to impose a minimum monetary bond to ensure financial security for the unborn child, in case he or she is abandoned later. The money will have to be declared in the name of the unborn child before any foreigner is allowed to approach an Indian to become a surrogate-mother, a senior government official said.

Under the new norms, still at drafting stage, the government also plans to impose penal action on foreigners who flout the visa norms for surrogacy. There have been instances when people came on a tourist visa and commissioned surrogacy, even though it should be done under the “medical visa” category.

The Ministry of Health and Family Welfare recently circulated a Cabinet note on the Assisted Reproductive Technologies (ART) Bill, which intends to regulate surrogacy rules in India. The Bill has a detailed chapter on framing rules for surrogacy commissioned by foreign couples.

“To ensure financial security for the unborn child, we will be pressing for minimum cash-bond by a foreign couple which intends to come to India for surrogacy. Since, there have been several complaints of children being abandoned once they were born, this was a necessary step. We have not decided the amount yet. Any couple flouting visa norms will have to face penal action,” said a senior government official.

In 2012, the Ministry of Home Affairs (MHA) had also issued guidelines for those intending to visit India to commission surrogacy. It said, “The appropriate visa category for the foreign nationals coming to India for commissioning surrogacy will be medical visa, the foreign man and woman must be married for at least two years and the couple should enclose an application that the country recognises surrogacy and the child would be permitted into their country as a biological child of the couple.”

Though the norms for foreigners were being dealt with by the MHA separately, the new draft law would incorporate all these concerns. The bone of contention between MHA and the Health Ministry is whether to allow single parent surrogacy. Deliberations on this are still on.

Under the UPA government, the Directorate General of Health Services (DGHS) had proposed that the option of surrogacy be available only to married, infertile couples of Indian origin, thereby ruling out surrogacy options for foreigners, unless they are married to a person of Indian origin.

According to a 2012 study by the Confederation of Indian Industry (CII), around 10,000 foreign couples visit India to commission surrogacy and nearly 30 percent were either single or homosexual.

In the same year, an Australian couple left behind one of the twins born to an Indian surrogate mother because they could not afford to bring up two children.



CAPE TOWN - A Cape Town fertility professor says there is a desperate need for surrogate mothers countrywide.

As fertility rates are declining globally, more women are resorting to clinics for assistance to fall pregnant.

The Aevitas clinic’s world-renowned Professor Thinus Kruger pioneered South Africa’s first test tube baby more than thirty years ago.

He says some women have serious medical conditions making it difficult for them to carry a pregnancy to term.,

“I think there are more people with medical conditions that will force them to ask for a surrogate and they’re not freely available.”

He says same sex couples also need surrogate mothers.

“We’ve had successful cases in the past, exactly like the Elton John case. South Africa’s law on surrogacy is very clear and it supports stable relationship couples to make use of the surrogate.”


Tuesday, June 23, 2015

Nepalese surrogacy unearthed

The devastating earthquake in Nepal last April unearthed many harsh realities of life in poverty stricken country – including the alleged exploitation of young Indian migrants by surrogacy agents in Kathmandu.

After the 2013 Indian government ban on the use of local surrogates by non-married, gay or single parents, surrogacy agents have turned to Nepal where the procedure is less regulated.

While Nepalese locals tend not to act as surrogates, there is no official government ban and scores of migrant women rent their wombs in cities like Kathmandu.

Surrogacy agencies in Nepal lure clients on the Internet with rates that are about a fourth of the prices in the United States. The packages cost between $35,000 and $65,000. The mothers earn between $5,000 and $6,000 of that, the price of a house in that part of Asia. The rest goes into the pockets of doctors and agencies.

SE Asia surrogacy activist group Surrogacy Laws India has expressed concern about the treatment of the women, who are effectively detained in local hotels for the duration of their pregnancy. Surrogacy agents want to avoid criticism from the socially conservative Nepalese community, who are largely ignorant of the science behind IVF and see pregnancy out of wedlock as taboo.

Despite the questionable treatment of surrogates, Nepalese businessmen are excited about the growing surrogacy trade.

"Surrogate mothers can help develop our medical tourism," said Roop Jyoti, the owner of a new surrogacy clinic at Kathmandu’s Grande hospital. "It's good for our economy and our health care system. Agencies have brought us a know-how that it would have taken us years to acquire. Now it's up to the government to decide whether they want surrogate motherhood to develop."


Perez Hilton Welcomes a New Daughter Into Family

Perez Hilton is going to have twice as much love this Father's Day.

The gay media maven recently welcomed Mia, a baby girl, into his family. Mia was born around 5 weeks ago through a surrogate mother, reports the Associated Press.

Mia joins her older brother, Mario Armando Lavandeira III, who was born February 16, 2013, also via a surrogate mother and an egg donor.

The 39-year-old blogger raises the siblings with the help of his mother and a nanny in New York City.

Currently single, Hilton said he "didn't want to worry about a relationship of mine interfering with the happiness and well-being of my children" and "that every day is Father's Day for me."

He also won't allow baby Mia out in public until she receives her two-month shots, because he is "pro-vaccination" and a "very cautious parent."


Radio: The old-fashioned worries of modern parenting

She needs a mother for life, not just for nine months. As an argument against same-sex marriage, the poster that so described surrogacy during the referendum campaign was a particularly spurious red herring. But as a slogan it was undeniably memorable, playing on the misapprehensions that surround the practice of surrogacy, albeit egregiously. It’s a shame, then, that Documentary on One: Seven Years and Nine Months (RTÉ Radio 1, Saturday) is being broadcast only now.

Mary-Elaine Tynan’s portrait of an Irish couple’s efforts to have a child with a surrogate mother has an empathetic clarity that dispels much of the confusion about the practice, not least the specious notion that surrogacy is an exclusive lifestyle choice for same-sex partnerships – the documentary’s subjects, Rachel and Daniel, are heterosexual. The programme also punctures the idea that surrogacy is a path taken on a whim. But it also raises uncomfortable questions about surrogacy, if not the ones posited by the No campaign.

With Rachel unable to get pregnant, and having tried IVF and the adoption system for seven years, to no avail, she and her husband decide to pay another woman to carry their child. (The total fee for the procedure is about €80,000.) Far from being the surrogate stereotype of a desperate third-world woman, Carolyn is a married mother of three from Boston, “educated and comfortable”, who has no genetic link to the baby, with the egg coming from another donor. (The sperm is Daniel’s.)

But these ethical and clinical safeguards offer little insulation from emotional and physical turmoil. Carolyn frets that she has let down Rachel and Daniel when the first attempt at fertilisation fails. When the second attempt ends in miscarriage Carolyn is, to use Rachel’s phrase, borderline hysterical. After Carolyn becomes pregnant again the uncertainty is increased by her lapses in communication, ensuring that an already sensitive transatlantic arrangement becomes even trickier.

Tynan nicely captures these tensions. Seeing pregnant women in a maternity shop, Rachel says she feels like a fraud. Carolyn, meanwhile, expresses regret that she won’t see the baby grow up. The birth itself is, as Tynan comments, “a strange situation”, with the couple joining Carolyn in her Boston hospital room to give encouragement.

When Carolyn has to finally hand over the baby – a girl named Zoe – she clearly struggles. “She held her just that little bit too tight for a little bit too long,” remarks Rachel, who finds herself upset but also a bit cross at the sight. The couple then have to obtain a US passport for Zoe’s journey back rather than risk possibly awkward questions from the Irish Embassy about the baby’s birth mother, underling the legal ambivalence surrounding surrogacy here.

Even back home, Rachel says, it was three months before she bonded fully with Zoe, adding that she can still feel a twang of panic. Having two mothers clearly isn’t without problems, if not in the way opponents of same-sex marriage would have it.

For all that, it’s a compelling story, and timely too. In an age when fewer and fewer families follow traditional lines, the documentary highlights the challenges faced by all parents, whatever their biological connections to their children, or indeed their gender or sexuality. It also reveals the anxiety involved in such parental arrangements, in contrast to the impulsive behaviour that can kick-start so-called natural families.

Even so, women who want a family should surrender to those primal urges, ideally at an early age. That at least seems to be the opinion of Prof Fionnuala McAuliffe, of the National Maternity Hospital, who tells Breakfast (Newstalk, weekdays) that women should “avoid starting a family too late” to avoid problems of infertility. Whatever the appropriateness of this advice for would-be mothers, it’s a godsend for sixtysomething talkshow hosts in search of readymade controversy, as proved by Tuesday’s edition of The Pat Kenny Show (Newstalk, weekdays). Kenny invites the columnist Brenda Power to discuss the matter, with predictable but entertaining results. The message such advice sends to young women, Power says, is to “forget your brain . . . you’re basically a uterus on legs”. Meanwhile, men are effectively being told that women over 30 are “past their sell-by date”.

While McAuliffe is worried about the potential difficulties faced by older women who have to seek pregnancy by IVF, Power sees such procedures as paths to freedom. The freezing of eggs, she says, is on a par with formula milk and the contraceptive pill as a “liberator of women”.

It’s such a stirring call to arms that Kenny also gets into the swing of it. With characteristically leaden wit he imagines an encounter between thirtysomethings in a nightclub of the future. “ ‘Do you have frozen eggs?’ ‘Do you have frozen sperm?’ ‘Let’s do it, baby,’ ” chuckles the host, who clearly missed his calling as a smooth-talking Casanova.

Kenny later talks to Prof Robert Harrison, formerly of the Rotunda Hospital, who says that Power’s views trivialise the difficult process of freezing eggs. Kenny dutifully listens, but it’s a much less sparky exchange. The discussion may not resolve when or how it is best to have a child, but it proves that, as with starting a family, hatching on-air controversy often needs careful planning.

Moment of the Week: Tactful Tubridy
In the wake of the disaster in Berkeley that ended so many young Irish lives, Ryan Tubridy (2FM, weekdays) tries to comprehend its enormity. As a huge fan of the US, he imagines being a student having the whole “J-1 experience”, enjoying the promise and freedom of “being in that great country . . . Then you have a party, and you go on the balcony . . . and it all goes black.” Musing about the injured survivors, Tubridy tells listeners that “if you’re the praying sort, now’s the time”. It’s emotive, even a bit embarrassing. But in contrast to the mean-minded coverage in the likes of the New York Times, it’s also utterly right.


Colorado native expecting third child via surrogate

Three kids, all born using three separate surrogates. It sounds like a reality TV show, but it's actually a real-life family! Colorado-native Sarah Levine and her husband Eric wanted a family, but struggled with fertility.

Now they have a growing family and quite the story to tell.

"It's almost like I'm babysitting for someone," said surrogate Jessica Troy.

Troy is expecting a baby that isn't her own. In just a few hours, the surrogate mother will be induced at North Suburban Medical Center in Thornton to deliver another woman's baby.

"It's not our first surrogacy so I've been down the road before, and you would think that would make me calmer but it's not," Levine said.

Sarah Levine is a Denver native but these days she lives in Paris, France. Sarah and her husband Eric always knew they wanted a big family.

"What we really dreamed of was two or three children. That's what we had discussed when we first started dating," she said.

Sarah was going through in vitro fertilization -- or IVF -- when she discovered even more devastating news.

"During that work-up of finding out some of the reasons for my infertility, we found that I had endometrial cancer so I had to have a hysterectomy," she said

So began Sarah and Eric's journey through surrogacy. Their first baby was carried by certified nurse and midwife, Aimee Melton.

"I feel proud. I gave her this gift of motherhood," Melton said.

"Aimee, our first surrogate, was a colleague of my sister's. Then my sister offered to be our surrogate for the second one and then she offered to find somebody else for a third," said Levine.


King, Queen check on charity sheltering 125 children

AMMAN — Their Majesties King Abdullah and Queen Rania on Wednesday visited Al Hussein Social Foundation for Orphans where they checked on the conditions of the children there.

At the foundation, which provides home for 125 children, the King and the Queen exchanged conversations with the children, and gave them presents, reflecting the spirit of solidarity and compassion.

Smiles were drawn on children's faces, aged between 1 to 12 years, during Their Majesties' visit, who expressed their keenness on assisting and supporting this segment of the Jordanian community.

Some of the children are orphans, while others are of unknown parents, victims of domestic violence or born in broken families, all staying at the foundation established to provide them with a home-like environment.

Their Majesties commended the workers and thanked them for their dedication in performing their humanitarian job.

During the visit, King Abdullah issued directives that all the foundation’s needs be secured, according to a Royal Court statement.

To further support the foundation, he requested that the orphanage be provided with a solar energy system to reduce energy costs and mitigate its financial burdens. He also requested concerned parties to examine the possibility of installing a solar energy system at other Ministry of Social Development welfare houses.

Touring the foundation’s different sections, Their Majesties were briefed at the section of newborns by their nurses and surrogate mothers on different forms of care and services provided to the infants. The King and the Queen made sure that the children are provided with the care they need.

At one of the foundation’s homes, housing nine children, the King and the Queen exchanged talk with the children, who are living together as one family and taken care of by a surrogate mother.

Foundation Director Naziha Shatarat said its houses are very much like family houses, comprising children of different ages, adding that around 106 employees are working to provide them with health, social, education and extracurricular activities.

At the extracurricular activities’ section, children huddled around King Abdullah, and expressed their happiness with the Royal visit.

Eleven-year-old Zain, who was drawing in the art section, told the King and the Queen about her hopes and dreams as they looked at some drawings and works of art that were on display.

Nasr, a 12-year-old boy, seemed overjoyed as he showed Their Majesties part of his works that were on display along works of other children from the foundation.

Established in 1953, the foundation works to provide care and a home for the children representing special cases and to ensure them proper upbringing until their social conditions become better. Then, they are to be returned to their families.    

Social Development Minister Reem Abu Hassan said the visit by the King and the Queen “brightened up the children’s spirits, especially that they need to feel care and sympathy”.


Gay dads turn to 'hero' sister in surrogacy struggle

This Father's Day, Craig Parkes and Matthew Hinton will have a new reason to celebrate family. Their son, Fitzgerald, was born earlier this year, and although he's been more than a welcome addition, the road to his birth was anything but easy.

"It's been a lengthy progress," says Hinton. The couple originally attempted insemination with a surrogate in India, but without success. On top of that, while he was there, the country shut down surrogacy for gay parents.

The solution eventually arrived through a familiar face. Hinton's sister Laura volunteered to be a surrogate for the couple. Although that solved the issue of who would carry the baby, they still required an egg donor, which was unavailable in Canada.

"We ended up having to go through an agency and actually compensate an egg donor, which you can't do in Canada. So because Laura lives in South Carolina, it actually worked out for us," says Hinton.

Since the birth of their son, Parkes and Hinton were approached by Tylenol to star in its newest commercial. Parkes says it was an opportunity to destigmatize gay couples having children.

"I think the more people see regular couples with babies — whether they're gay or straight — the more comfortable they are around it. I don't think we set out to make a point or to change people's minds, but looking back, it's kind of inevitable that that's a role we're falling into."

Unique challenge for gay parents

The entire process made clear to Hinton the difficulty for gay couples of trying to start a family.

He says there were few options available to them because many countries do not allow two male partners to adopt a baby. On top of that, Canadian laws add to the complication of using surrogacy.

"The issue for us is that there's a ban in Canada on paying a surrogate. You can reimburse her, but you don't know where that line is. You also can't pay a woman to donate an egg to you. Realistically, for a gay couple you need have both," he says.

The Vancouver couple refer to Laura as a hero for allowing them to start their own family. Laura says the decision came easy for her.

"Family is so important. It was a way to help a family member and I wouldn't have it any other way."


Wednesday, June 17, 2015

How my sister helped us start a family

When Clinton’s sister Rhiannon said she could be a surrogate so that he and his partner Callum could start their own family, the couple knew they were being offered a precious gift.

“Callum and I welcomed the arrival of our little daughter in December, and we’re keen to show the good side of surrogacy,” says Clinton. “There have been a lot of stories over the past 12 months that have shown it in a very negative light. But there are also some really uplifting and positive stories.”

The couple met in 2010 and knew they wanted to start a family one day, but it wasn’t until they had our civil ceremony in late 2012 that they felt ready.

“Once we looked into it, there was really only two options, either going overseas for International surrogacy or do it domestically.” Clinton explains. “We soon realised that its illegal in NSW to do an international surrogacy and while to date there had never been any prosecutions of parents that we knew of, it was a very important to us to not do anything even remotely illegal to have our family.

“We wanted to have the close contact that domestic surrogate and egg donor would bring to our child’s life. Allowing a clear and open channel for our child/children to where they come from was really important to us.”

Clinton’s sister Rhiannon kindly offered to be a surrogate for the couple. Clinton says she had already had three children of her own and felt her family was complete, so she was in a very good physical and mental state to offer this incredible gift.

But what are the legal rights and obligations involved in having a child through surrogacy?

“In a lot of ways, doing surrogacy domestically is a very step-by-step process, but it is also a very involved one,” says Clinton. “If you, your clinic and your lawyer follow the very clear Australian Surrogacy Act guidelines, then it makes it very clear on what you need to do and when you need to do it.

“What makes it complicated – as opposed to doing it internationally – is that you don’t have an agency taking the reins and controlling everything. You are on your own and self reliant on getting things done. So you need to be very on top of all the people involved. From your lawyer, to the IVF Clinic that you choose, to meeting and selecting your egg donor and surrogate and arranging your multiple counselling sessions, blood tests and ultrasounds.

“The pay off in our eyes was the intimate contact we had with all aspects of our journey. From getting to know our egg donor – the person that would provide the important DNA and character traits to our child/children – to being able to be present at every and all aspects of the pregnancy.”

Clinton and Callum’s lives have now changed hugely since their daughter Zara arrived a few months ago.

“Zara continues to surprise us and entertain us every day,” Clinton laughs. “I don’t know what we thought being a parent would be. Our siblings have children, so we had a little idea, but actually being a parent yourself is so different for each person.

“Your life changes dramatically,” he adds. “It’s like there’s this switch that turns on making you conscious and aware that there is another person more important than you, in need of your constant attention and love. But you just have this reserve of energy that never seems to run out. It might be the middle of the night and you’re sleep deprived, but something just happens when you hear those little cries. Its like an instant coffee hit.

“You learn to enjoy every day because if you blink, you have missed something. I think the thing we didn’t expect was how much the love for this little person grew. I guess we thought that she would be born and that would be it, we love her. But what we found was that the love just grew and grew. As she grows and develops you find new things to love.”


Embryo implanted into surrogate mother in Ho Chi Minh City's first surrogacy case

A surrogate mother had an embryo implanted into her uterus in what is known as the first surrogacy pregnancy case in Ho Chi Minh City at a major onsterics hospital on Friday, nearly three months after surrogate pregnancy is allowed in Vietnam.

The woman, who acts as a surrogate mother for a 44-year-old Vietnamese-American woman who is infertile, had the implantation carried out by doctors at the city's Tu Du Obstetrics Hospital.

Whether the embryo can develop well in the uterus of the surrogate mother remains to be seen in about two weeks, said Dr. Hoang Thi Diem Tuyet, deputy director of the hospital.
The woman who received surrogacy had the embryo kept at the hospital before the implant, the doctor added.

A surrogacy is a case in which the embryo of a biological child of a woman and her spouse is implanted into the uterus of the recipient after it is created through the in-vitro fertility technique.

The names of the two women, who are cousins, have yet to be revealed.

The Vietnamese-American woman had experienced many times of infertile treatment, including the in-vitro fertilization method, in both the U.S. and Vietnam but she failed to get pregnant.

After knowing that Vietnam allowed surrogate pregnancy, the childless woman returned to Vietnam to carry out procedures for the surrogacy, the doctor said.

After her application for surrogacy was approved by the medical council of the hospital, she had a cousin of hers to help her as a surrogate mother.

The provider surrogacy, who is living in Vietnam, was married and have two children.

Tu Du is one of the three hospitals allowed by the Ministry of Health to perform cases of surrogate pregnancy.

The regulation allowing surrogacy in Vietnam is part of the revised Law on Marriage and Family that came into force on March 15, enabling people to act or have others act as surrogate mothers for humanitarian purposes on a voluntary basis after satisfying certain requirements.

Along with Tu Du, two other major clinics assigned by the Ministry of Health to handle surrogacy cases are the National Hospital of Obstetrics and Gynecology in Hanoi, and the Hue Central Hospital in the central city of Hue.


Wadia hospital to start IVF, surrogacy unit

Parel-based Wadia Hospital is set to become the first government hospital in Mumbai to start assisted reproductive technique (ART) along with surrogacy. The charitable hospital will cater to lower strata of the society where infertile couples wish to conceive a child but cannot afford the expense on surrogacy or in-vitro fertilization (IVF) procedures.

The hospital has applied to the Indian Council of Medical Research (ICMR) for approval. The IVF department is expected to start in two months. According to the hospital administration, they will first start the IVF facility and then proceed to provide surrogacy services.

“A system needs to be put in place to ensure eligibility of surrogate mothers and authentic identification. Surrogacy needs to be handled with care,” said Dr Minnie Bodhanwala, chief operating officer at Wadia Hospital.

The hospital’s family planning department will counsel parents about the new facility and the IVF procedure.

With awareness on surrogacy and ART still poor in low socio-economic communities, the hospital’s family planning unit will be trained for handling queries in various languages. “For now, we will keep two medico-social workers for counselling couples,” said Dr Ashvini Wadia, medical superintendent.

With a separate set of surrogacy laws yet to be in place in the country, the hospital will follow ICMR guidelines. Egg donors, between the age of 21 to 35 years, will be registered on the basis of current guidelines. According to Jogade, the hospital will not charge for basic treatment and medicines.


Monday, June 8, 2015

Surrogacy and Its Misconceptions

It was a medical problem and a sister's deep concern that first planted the idea in Sarah Cowen's mind of carrying a baby to term for someone else.

"I had experienced very painful ovulations at 15," she recalls. "And my sister offered to carry my children for me. [She ultimately did not.] I guess she planted the seed in my mind."

Sarah Cowen (not her real name) eventually married and had two children of her own without any complications. Although she was happy with her family life in Pittsburgh, she wondered if she should act as someone else's gestational carrier - someone who carries to term a baby that is not biologically related to them - to allow another person to form their own family.

"It was something I thought I might like to do," the 30-year-old says. "I felt I wasn't done with being pregnant, but we didn't want any additional children."

When she broached the subject with her husband, he rejected the idea. "He shot me down pretty quickly," Sarah says, with a laugh. But she explained to her husband her reasons for wanting to consider the idea and eventually he agreed to support the decision. The couple then began the process of determining whether Sarah would be approved as a gestational carrier.

After signing with a placement agency, the Cowens created an online profile in a message board where prospective parents, surrogates and gestational carriers talk about their expectations. They were eventually drawn to a profile of a gay male couple based in Washington, D.C. After exchanging messages and sharing profiles, the couples began the process of negotiating the legal and logistical issues involved with a pregnancy.

Working with Shady Grove Fertility Center in Rockville, Md., the Cowens had to submit to mental screenings and evaluations where they discussed various issues with a therapist.

"They were similar questions to see if I was clear-headed about the decision. Was I deceitful? Was I a violent person? Did I understand what was involved?" Sarah says. "Physically, the biggest questions were: did I have children, were they healthy pregnancies, and was I done having my own children?"

Once approved for in vitro fertilization, Sarah went through the appropriate medical check-ups, talked over the legal contracts about who was financially responsible for which costs, and even went through a "mock cycle" with hormones designed to match her cycle with that of an egg donor already chosen by the couple. After the eggs were implanted, Sarah got pregnant on the first try, resulting in twin girls. Nine months later, the gay couple drove up to Pittsburgh for the delivery while Sarah went through labor.

"I carried them as I was wheeled back," she says. "All the adults spent time hanging out in the postpartum room. The babies were in the nursery, but they'd bring them in and we'd teach the new parents how to burp them and change their diapers. I got to see their parents meets their grandbabies. It was a really awesome transition from me having carried them to them holding and caring for their babies."

Because the Cowens live in a county that is progressive, neither prospective father had to adopt the twins. Instead, both were placed directly on the birth certificate, making them the legally recognized parents, something that doesn't generally occur in other states.

A few years later, Sarah became a gestational carrier for the same couple, helping them bring into the world their third daughter, now a year old. The twins are four years old. Both families still keep in touch with one another.

"Just because you finish delivering them doesn't mean it's a final goodbye," Sarah says.

But while Sarah's story has a happy ending, the world of adoption, surrogacy and gestational carriers can be extremely complex and complicated, often hindered by outdated laws that have failed to keep up with both medical advances and with changing societal definitions of what constitutes a parent or a family.

In the District, surrogacy is permitted but surrogacy agreements are prohibited. A proposed Council bill that would legalize those agreements, both for traditional surrogacy and gestational surrogacy, has stalled in the Judiciary Committee. In Maryland, meanwhile, where legislators had hoped to clarify the law with respect to the rights and responsibilities of prospective parents and surrogates who enter into a gestational carrier agreements, a bill failed to move forward in the General Assembly. As a result, there remains no law governing gestational surrogacy in the Free State, and a gestational carrier would initially be assumed to be legally responsible for the child in question.

Opponents of Maryland's gestational carrier bill sought to deliberately sow confusion among their fellow delegates. They blurred the line between gestational surrogacy and other forms of collaborative reproduction, such as traditional surrogacy or egg donation. They concocted outlandish and unrealistic scenarios that portrayed the bill as a Pandora's box that would unleash nightmare legal scenarios on the citizens of Maryland.

Still other members, mostly conservative Republicans, balked at the idea of abortion or selective reduction, which can happen when a gestational carrier is implanted with multiple eggs via in vitro fertilization.

"In fairness, this was the first year of a new term," says Del. Kathleen Dumais (D-Montgomery Co.), the House sponsor of the gestational carrier bill. "We had a lot of new members for whom this was their first time hearing about the issues." Dumais says she'll try again next year, noting that former Attorney General Doug Gansler (D) had issued an opinion that is still valid and supports the legal framework of the bill introduced this past session. She will seek a similar opinion from current Attorney General Brian Frosh (D).

Dumais adds that almost any bill on family law would have been unlikely to move forward this session, as many bills were overshadowed by legislation dealing with issues of police accountability, particularly in light of the recent unrest in Baltimore following the death of an African-American man in police custody.

Dr. Michael Levy, of the Shady Grove Fertility Center, says some of the opposition that the gestational surrogacy bill ran into was ideological, based on opposition to any form of conception that occurs outside the marital bedroom.

"If you're personally unaffected, you have an abstract view that is different from reality," he says. Other opposition, he notes, comes from issues related to abortion rights and embryo rights, and opposition to "destroying embryos," as many embryos are utilized in the process of in vitro fertilization.

Levy has talked with groups of gestational carriers incensed by opponents attempting to paint them as weak-willed, helpless victims who have been exploited or forced to use their bodies for someone else's benefit. The majority of gestational carriers, he says, express positive feelings about their experience, with some opting to repeat as a carrier.

"It's a ridiculous notion that I was exploited," says Sarah Cowen. "I picked this couple as much as they picked me. Just like a pregnancy, it's up to an individual woman what she should do with her own fertility. I chose it. I loved it. I'm an adventurous person, I suppose.

"It was so much more than just a pregnancy," she continues. "To think I didn't get any return from this is wrong. I got to experience helping create an entire family. It's my greatest accomplishment, and I can't imagine not having this as a part of my life story."