France legally recognizes children born to surrogates

PARIS, July 4 (UPI) -- France's highest court granted legal status to surrogate children Friday, allowing them French birth certificates and the same legal rights as other French-born children and advancing what could be greater acceptance of what some see as non-traditional families.

The dramatic shift does nothing to remove the ban on surrogacy in France, but does allow children born abroad through a surrogate to be legally tied to their parents with documents to prove their French citizenship.

In a traditional surrogacy, a woman carries an embryo created from her own eggs and and the intended father or a donor. A gestational surrogate carries an embryo from both the intended mother and father.

Surrogacy was outlawed in France in 1991 as a means to protect the country's values.

The Cour de cassation's decision Friday comes after two separate cases that involved men asking for French birth certificates for their children born in Russia to surrogates.

The ruling means the children have access to ID cards, passports, state health care and other services intended for French citizens.

Sources: http://www.upi.com/Top_News/World-News/2015/07/04/France-legally-recognizes-children-born-to-surrogates/3241436014158/

Forms of surrogacy

There are two forms of surrogacy. In the first, the surrogate mother’s own egg cell is used to conceive the child. In the other form, there is no genetic relationship between the surrogate mother and the child.

Two ways to become a surrogate mother

• Naturally or by artificial insemination
  The surrogate mother can become pregnant naturally or by artificial insemination. The fertilised egg is her own. This is known in the Netherlands as ‘low-tech surrogacy’. The surrogate mother is the child’s genetic mother.
  
• By implanting an embryo
  An embryo produced by IVF is implanted in the surrogate mother’s womb. The egg cell is not her own. This procedure is known in the Netherlands as ‘high-tech surrogacy’. The surrogate mother is not the child’s genetic mother.

In the Netherlands, embryos used in high-tech surrogacy must always be produced using the egg cells and sperm of the intended parents. This is laid down in the 1998 medical guidelines on high-tech surrogacy. Doctors are now thinking about whether they need to update these guidelines.

Sources: http://www.government.nl/issues/surrogate-mothers/forms-of-surrogacy

Surrogate Children Get Legal Recognition in France

(PARIS) — France’s highest court has granted legal recognition to surrogate children, in a major turnaround that will make their daily lives easier and could lead to greater acceptance of new forms of families.

The Cour de cassation ruled Friday that, while surrogacy will remain banned in France, children born abroad through this practice will now be legally tied to their parents and will be granted birth certificates and immediate means to prove their French citizenship.

Surrogacy can involve a woman carrying an embryo created by in vitro fertilization using another woman’s egg and her partner’s sperm. In some cases, such as those involving male gay couples, the surrogate mother is also the genetic mother of the child.

Until now, surrogate children were deprived of any legal connection to their parents, or any civil status in France. They were considered as children born from unknown legal parents, since their foreign birth certificates weren’t recognized. One lawyer has described them as “ghosts of the republic.”

Unlike other children born abroad to a French parent, these children couldn’t get automatic ID cards or passports, or register for state health care or other services.

This exposed them to frequent problems, because many basic tasks are impossible in France without an ID or authorization from a legal parent.

In addition to potential psychological troubles due to their incomplete identities, the children were also deprived of eventual inheritance, and faced major imbroglios in case of a divorce or the death of one parent.

Many hope that Friday’s ruling will increase the options for infertile and same-sex couples in France. For-profit sperm banks are forbidden, as is surrogate parenthood, seen by many as turning the womb into a commodity.

Europe’s top human rights court last year ordered the country to change the law on surrogate children, saying France’s refusal to recognize them was “an attack on the child’s identity, for which descent is an essential component.”

Until recently, the Cour de cassation had repeatedly refused to give surrogate children any legal recognition, saying they were born abroad from a “fraudulent process.”

In Friday’s ruling, the top judges had to take into account the European decision. They found that their previous case law was contrary to the European Convention on Human Rights, and so decided to allow the transcription of the foreign birth certificates into the French civil status.

Two separate cases leading to the new ruling involved a gay couple and a single man who had gone to Russia to have babies through surrogate mothers.

The Cour de cassation said that the French birth certificates will have to mention as the fathers the men who recognized the children abroad. The mothers listed on the birth certificate will be the surrogate women who gave birth to the children. (Is this for these two cases specifically, or in general? Would it be the same if a French woman’s egg was used for IVF into a foreign surrogate?)

The overwhelming majority of the French parents using surrogacy abroad are heterosexual couples. But the judges left open the possibility of changes for heterosexual parents as well.

Sources: http://time.com/3945618/surrogate-children-legal-recognition-france/

It's Time to Change Our Outdated Surrogacy Laws

When children are left in a legal no man's land due to our country's surrogacy laws, they are no longer fit for purpose. Yet as a milestone High Court case has shown, this is exactly what is happening.

The children in that case, now aged five and eight, were born following a surrogacy arrangement between a British couple, one of whom was the biological father, and a surrogate mother in California. Under Californian law, the couple would be the legal parents, but under UK law, it is the surrogate mother (and if she is married, as was the case here, her husband) who is the legal parent. In order to become the legal parents, the British couple needed to apply for a court order called a 'Parental Order', which would give them full legal rights and responsibilities. However, this needs to be done within six months of the child's birth, and the couple were not aware of that requirement until years after the birth of the children.

This meant that whilst the British couple were raising and caring for them, the children had no legal parents in this country, which can give rise to all sorts of legal and practical difficulties. It also left them facing having to adopt the children instead, which would not reflect the true circumstances of the children's conception and birth. In other cases, parents have found themselves unable to bring their children back into the country for months due to the incompatibility of our surrogacy laws with other countries.

Fortunately in this case, the judge, Ms Justice Russell, felt that protecting the welfare of the children meant that the Parental Order should be made despite having missed the statutory deadline. But in doing so, it is clear that the courts now have to creatively interpret the current law to rectify situations that leave children and their parents adrift.

And it's not just international surrogacy that can create complex issues for the court to resolve. Many will be familiar with the recent controversial High Court case in it was ordered that a small girl live with her biological father and his partner rather than her biological mother, following the breakdown of an informal surrogacy arrangement.

It is clear that our surrogacy laws are no longer fit for purpose, often creating a great deal of uncertainty, expense and heartbreak to the families involved in this process. So how can they be brought up-to-date?

1. Introduce a Pre-Birth Regulatory Framework

Unlike many other countries, in the UK all of the necessary legal requirements can only be dealt with once the child has been born, and within the 6 month period. This can cause difficulties for couples who are unaware of the basis upon which a court will or will not make an order granting them legal parenthood, or find themselves in a dispute with the surrogate mother.

By introducing a framework that would allow for these issues to be ironed out before a child is born or even conceived, all those involved would have a benefit of a greater clarity as to where they stand. Whilst there are concerns that making surrogacy arrangements enforceable may impact negatively on the surrogate mother if she were to change her mind, their current lack of enforceability doesn't necessarily remove that issue.

Such a pre-birth framework could address that and provide for psychological screening and counselling to ensure all involved are suitable for the process, and if professional third parties were allowed to assist in negotiating and advising as to surrogacy arrangements, the potential pitfalls could be properly highlighted at the right stage, i.e. before the child is conceived.

2. End the Ban on Commercial Surrogacy

Commercial Surrogacy is a concept that understandably makes many uneasy, conjuring images of children being bought and sold, and vulnerable mothers being exploited for profit. And these are valid concerns.

But the reality is that many countries already allow commercial surrogacy, and many British couples are making use of it, leaving the courts in a position where in order to protect the child they have to approve arrangements that the law would otherwise prohibit. In that sense, the genie is out of the bottle.

That does not mean that all such arrangements should be endorsed, whether legally or ethically, and an approach can be taken to ensure as far as is possible that no one is exploited by this process. Already, when taking into account money paid in commercial surrogacy arrangements overseas, the court here will not approve anything that looks like the process of buying a child, nor where it might be that the sum was significant enough to override the free will of the surrogate mother. It is still possible to approach commercial surrogacy from within an ethical framework.

3. Greater International Co-Operation

Many couples are entering into surrogacy arrangements overseas, and the conflicting approaches between countries can lead to serious consequences, as this cases highlights. An international treaty signed by those countries which allow surrogacy would provide for a set of minimum standards and requirements, and provide for greater mutual legal recognition. It provide greater clarity for couples travelling overseas as to what they need to prepare for, as well as helping establish a proper ethical framework to help ensure that the women who act as surrogate mothers are not exploited.

Such changes to our laws will not be without controversy, but something needs to give as the current system is not working as it should. By failing to update them to keep pace with the reality of domestic and international surrogacy, we are failing to prioritise the welfare of the children born as a result of such arrangements, an outcome that cannot be allowed to continue.

Sources: http://www.huffingtonpost.co.uk/richard-adams/surrogacy-laws_b_7713624.html

India to introduce law requiring bond for surrogacy hopefuls

Delhi: Foreign couples planning to go to India for a surrogate baby will have to pay a bond before they can contact a surrogate mother under a new law being prepared by the Indian government.

The proposal was prompted by the case of an Australian couple who left a baby boy born to a surrogate mother behind, after taking his twin sister back to Australia in 2012.

The couple, from New South Wales, argued they already had a son, wanted a girl to "complete" their family and could not afford to raise the boy.

An ABC investigation in April found the couple was repeatedly told abandoning the boy could leave him stateless because India did not recognise surrogate children as citizens.

To avoid similar situations the Indian government wants to impose a minimum monetary bond on foreign couples so that there is enough money to raise and support any baby that might be abandoned.

The proposal is part of a wider new Assisted Reproductive Technologies Bill designed to regulate India's surrogacy industry, believed to be worth an estimated $2.3 billion.

The bill addresses issues such as compensation and the age and consent of the mother.

Department of Health Research secretary Dr Vishwa Katoch said the draft bill was close to being finalised.

"There are still a few differences among the ministries who differ on whether single-parent surrogacy can be allowed or only married couples but it's almost there and ready for Parliament to consider," he said.

According to a 2012 study by the Confederation of Indian Industry, about 10,000 foreign couples visit India to commission surrogacy and nearly 30 per cent are either unmarried or homosexual.

Another proposed change is to require foreign couples travelling to India to collect their baby to apply for a medical visa, rather than obtain entry on a tourist visa, as they do at present.

The idea of a bond does not seem viable to Hari Ramasubramanian, one of the country's few legal experts on surrogacy, since couples come to India because the process costs less there. The government has not yet decided the amount of the bond.

"The other issue is the amount. Even if it's something like $US40,000 to $50,000 [$52,000-$65,000], even for India, that isn't much because it has to cover the baby's entire lifetime till adulthood. If you add this to the cost of surrogacy, how can couples afford it?," he asked.

Mr Ramasubramanian said India would do better to enforce existing laws instead of creating new ones. He said it was a crime under Indian law to abandon a child but the government had taken no action against the Australian couple.

Sources: http://www.smh.com.au/world/india-to-introduce-law-requiring-bond-for-surrogacy-hopefuls-20150703-ghybq9.html

Did you know that all children have the same rights and obligations, regardless of the circumstances of their birth, including children born of assisted reproduction?

Oliver and Arthur have been together for nearly 10 years. Being well established in their careers, they feel ready to start a family together. Lana, the couple’s closest friend, having already given birth to two beautiful children of her own, has always maintained that it would give her great pleasure to bring this much-desired child into the world.

After several months of discussions, Oliver and Arthur finally decide to go through with this lifelong project. Procreation is quickly realized by implanting an ovum fertilized in vitro with Arthur’s sperm in Lana’s body. It is agreed, with Arthur’s consent, that the child will be adopted after the birth by Oliver. Nine months later, Lily is born perfectly healthy. The birth certificate indicates that her father is Arthur and her mother is Lana. The couple immediately takes Lily home. Oliver wonders if he could validly adopt his daughter and exercise parental authority over her.

Did you know that all children have the same rights and obligations, regardless of the circumstances of their birth, including children born of assisted reproduction? To be recognized as Lily’s father, Oliver will have to file a motion for an adoption placement order before the Youth Division of the Courthouse. He will have to prove that the adoption is in Lily’s best interests. Even though the couple did resort to a surrogate mother, the judge should not consider the circumstances surrounding the birth. Once the motion is granted, Oliver’s name will appear on Lily’s birth certificate under the mention father, while Lana’s name will disappear.

It is important to distinguish surrogacy contracts and the right of children born from surrogacy. The interests of the child always have priority. However, if the couple had decided to sign a surrogacy contract, it would have been considered null and void. This means that the couple would not have been able to force Lana to continue with the pregnancy had she decided to interrupt it. This also means that they would not have been able to invoke the agreement if she had refused to sign the consent to adoption.

Sources: http://www.westmountexaminer.com/Collaborators/2015-07-02/article-4201459/Did-you-know-that-all-children-have-the-same-rights-and-obligations,-regardless-of-the-circumstances-of-their-birth,-including-children-born-of-assisted-reproduction%3F/1

Op-ed: Utah adoption, surrogacy laws need to adapt to same-sex marriage

Friday was a momentous day in the history of our nation. The U.S. Supreme Court ruled that all states must allow same-sex couples to marry.

The legislature of each state will now need to adapt its laws to reflect this new reality.

One of the main questions that will need to be addressed is whether laws regarding reproduction and parenthood should be exactly the same for gay couples, lesbian couples and heterosexual couples.

As a current state legislator, it seems to me that laws for these different types of relationships will naturally be different, due to the inherent biological distinctions between each of these unions.

For example, current Utah law provides that when a child is born to a married woman, the man to whom she is married is legally presumed to be the child's parent.

But when a child is born to a woman in a same-sex marriage, I am uncertain whether the law should impose upon her spouse a similar automatic presumption of parental rights and responsibilities over that child, unless the spouse has affirmatively agreed in advance to become the parent of that child.

Surrogacy laws are another area of difference. Utah law provides that a woman may bear a child as a surrogate for another person only if a court finds that the "intended mother" is unable to reproduce. Two married men who wish to become parents will obviously need the Legislature to enact a different law to govern their choice.

Adoption also presents different questions for same-sex couples. Utah law requires a natural parent of a child to terminate his or her own parental rights before another adult can adopt the child.

With same-sex marriage, however, some couples may wish to preserve the parental relationship with the opposite-sex parent when the unrelated same-sex spouse adopts the child.

None of these, or many other, questions regarding same-sex marriage will be easy to answer, but the Utah Legislature will need to answer them by passing new laws.

Unlike differences of race, differences of gender produce different results regarding parenthood that the law must address, and reasonable people can disagree on the specific policies the Legislature may pass to resolve these questions.

People who disagree with the passage of particular legislative policies will go to court to challenge those policies.

This will likely lead to an era of litigation by all sides, similar to what our country experienced with the abortion case of Roe v. Wade.

In that case, the court had to balance the right to life of unborn children with the right of women to obtain an abortion. The court ended up with a compromise position, which allows prohibition of abortion in some situations but not in others.

In the realm of same-sex parenting, the courts will be balancing the rights of children to be raised by their natural parents with the rights of adults to become parents through artificial means.

The courts will also likely be asked to consider the right of children to have gender diversity among their parents and the extent of a state's authority to protect that right.

I have introduced legislation for the upcoming session to address several issues prompted by the Supreme Court's decision.

I will approach all of these line-drawing questions with an open mind, for I cannot believe that either side has no good points to make.

Sources: http://www.sltrib.com/opinion/2678015-155/op-ed-utah-adoption-surrogacy-laws-need

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Governor Chris Christie Vetoes Important Pro-LGBT Surrogacy Bill

Last night, on the day before announcing his candidacy for President of the United States, Governor Chris Christie shamefully vetoed important bipartisan legislation passed by the New Jersey Legislature – the New Jersey Gestational Carrier Agreement Act – that would have modernized New Jersey law by giving legal parental rights of a child carried by a gestational surrogate to the intended parent at birth.  Garden State Equality, New Jersey’s statewide advocacy and education organization for the lesbian, gay, bisexual, and transgender (LGBT) community, and the Human Rights Campaign (HRC), the nation’s largest LGBT civil rights organization, decried Governor Christie’s veto of this important legislation impacting LGBT people and their families.

"This veto is a terrible outcome for families across New Jersey who need gestational surrogacy agreements to strengthen their families,” said Andrea Bowen, Executive Director for Garden State Equality. “We deplore what Governor Christie has done.”

“Instead of modernizing New Jersey’s surrogacy laws by signing this important bipartisan legislation into law, Gov. Christie chose to stand in the way of progress,” said Marty Rouse, HRC National Field Director. “Garden State families deserve better than the outdated obstacles that will now remain in place because of Gov. Christie – outdated laws that restrict their ability to establish appropriate parental and family rights. What a backwards way to start a campaign for the highest office in the land.”

Passed by both chambers of the New Jersey Legislature, the New Jersey Gestational Carrier Agreement Act would have authorized gestational carrier agreements under New Jersey law, providing a legal framework for gestational surrogacy in New Jersey. Gestational surrogacy is especially important to members of the LGBT community because it enables couples to establish parental rights and create a family while allowing such couples to have a genetic relation to their children. Gestational surrogacy is distinguished from traditional surrogacy, in which the carrier makes use of her own egg and therefore has a genetic relation to the child.

Over the past several years, gestational surrogacy has substantially increased as an option for family creation, and it is vital that states provide a system to govern this process. If signed into law, New Jersey would have joined 14 states which currently have laws that allow for gestational surrogacy agreements. The New Jersey Gestational Carrier Agreement Act would have modernized New Jersey law and standardized a necessary government function in a simple way that is consumer friendly, safe, and professional. Governor Christie also previously vetoed similar legislation in 2012.

HRC submitted written testimony on the importance of this bill and will continue to work with Garden State Equality to eventually update New Jersey’s outdated laws in this important area.

Sources: http://www.hrc.org/blog/entry/governor-chris-christie-vetoes-important-pro-lgbt-surrogacy-bill

Christie Vetoes Surrogacy Contract Bill

New Jersey Gov. Chris Christie on June 29 vetoed, for the second time, a bill that would have permitted legally binding gestational carrier agreements.

In such a contract, a woman agrees to carry the fertilized egg of another woman through pregnancy. According to the bill, S866, the surrogate mother would have been required to immediately forfeit all maternity rights.

Christie vetoed an identical version of the bill in 2012, saying not enough research had been done to study the possible ramifications.

"Permitting adults to contract with others regarding a child in such a manner unquestionably raises serious and significant issues," Christie said in his 2012 veto statement. "While some will applaud the freedom to explore these new, and sometimes necessary, arranged births, others will note the profound change in the traditional beginnings of a family that this bill would enact. I am not satisfied that these questions have been sufficiently studied by the Legislature at this time.

"Validating contracts for the birth of children is a step that cannot be taken without the most serious inquiry, reflection and consensus," Christie said.

Christie, in his latest veto message, said the sponsors had done nothing to allay his concerns since 2012.

"It should therefore come as no surprise that I remain unconvinced that the Legislature has addressed the myriad social, moral and ethical questions presented by this bill," he said.

Neither the chief sponsor, Sen. Joseph Vitale, D-Middlesex, nor his media representatives immediately responded to requests for comment.

The bill would have required that the contract clearly state that the gestational carrier would agree to undergo pre-embryo transfer, attempt to carry and give birth to the child and surrender custody of the child to the intended parent immediately upon the birth of the child.

Under the contract, the intended parent would have had to agree to become the legal parent of the child immediately after the birth. The contract also would have mandated that the child's birth certificate name the intended parent as the sole legal parent of the child.

During committee hearings held earlier this year, Vitale said the bill, called the New Jersey Gestational Carrier Act, would become a model for the nation.

"For men and women that struggle to get pregnant, gestational carriers can be a path to the family and children they have always dreamed of," Vitale said in a statement after one committee hearing.

"By providing a framework for gestational carrier agreements to be written, we can protect all parties involved in these contracts—from the intended parents, to the women carrying the baby to, most importantly, the children born from these agreements," he said.

Earlier this year, Vitale said he was bringing the bill back again because he and co-sponsor Sen. Loretta Weinberg, D-Bergen, considered it to be one addressing an issue of public importance.

Under the bill, any agreement would have allowed for the gestational carrier to choose her own medical care for the pregnancy, labor, delivery and postpartum care. Because the agreement would not be considered an adoption, a surrender of custody or a termination of parental rights, it would not be in conflict with New Jersey's adoption laws.

Also, the bill would have allowed for the intended parent to reimburse the gestational carrier's reasonable expenses in connection with carrying the child. This would include reimbursement for medical, hospital, counseling and living expenses during the pregnancy and postpartum recovery.

The intended parents would have been responsible for paying the gestational carrier's counsel fees, but the gestational carrier would have been able to choose her own attorney.

A gestational carrier would have to have been at least 21 years old and already have had a child or children of her own.

New Jersey has a checkered history regarding the use of gestational carriers.

Surrogate pregnancy contracts made national headlines in 1988 when the state Supreme Court issued its ruling in In re Baby M, which voided surrogacy-for-hire contracts.

In 2012, the court, in a 3-3 split in In the Matter of the Parentage of a Child by T.J.S. and A.L.S., let stand a lower court ruling that parental rights do not vest in the wife of a man who fathered a child through an anonymous egg donor, which was carried by an unrelated surrogate.

Vitale said 12 states—Arkansas, Delaware, Florida, Illinois, New Hampshire, Nevada, Tennessee, Texas, Utah, Virginia, Washington and Wisconsin—have enacted measures legalizing gestational carrier contracts in some form.

The bill passed the Senate in a 21-13 vote in February and the Assembly in a 43-25 vote in May. The votes were split largely along party lines.


Sources: http://www.njlawjournal.com/id=1202731016886/Christie-Vetoes-Surrogacy-Contract-Bill?slreturn=20150601013157

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.

Sources: http://www.bionews.org.uk/page_541008.asp

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."

Sources: http://www.independent.ie/life/family/mothers-babies/mum-at-the-centre-of-rte-surrogacy-documentary-ive-no-legal-entitlements-in-the-eyes-of-the-state-i-am-not-their-mother-31332860.html

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.

Sources: http://jen.jiji.com/jc/eng?g=eco&k=2015062601026

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.

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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.

Sources: http://www.latimes.com/opinion/op-ed/la-oe-nejaime-gay-marriage-decision-does-not-solve-everything-20150628-story.html

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).

Conclusion
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.

Sources: http://www.familylawweek.co.uk/site.aspx?i=ed145572

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.

Conclusion

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.

Sources: http://english.manoramaonline.com/lifestyle/health/surrogacy-the-mothering-instinct.html

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.

Sources: http://www.dailymail.co.uk/news/article-3137049/Baby-boy-abandoned-India-surrogate-parents-kept-twin-sister-left-boy-couldn-t-afford-twins.html

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.

Sources: http://www.ibtimes.co.uk/beyonce-jay-z-expecting-second-child-via-surrogate-reports-claim-1507828

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.

Sources: http://www.abc.net.au/pm/content/2015/s4260547.htm

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.

Sources: http://indianexpress.com/article/india/india-others/surrogacy-govt-plans-to-impose-monetary-bond-on-foreigners/