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UK High Court Judge endorses International Surrogacy

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Sir Nicholas Wall, the President of the High Court Family Division, has made public his decision to give parenthood to the British parents of twins born through surrogacy in India. The President said the issues were of “considerable public importance” and he wished to endorse the previous judgments of Mr Justice Hedley in other similar cases.

The decision, from one of the UK’s most senior family judges, represents a bolstering of the UK court’s position on international surrogacy: that although commercially organised surrogacy is not yet permitted in the UK, British parents can be awarded parenthood if they go abroad and pay a foreign surrogate mother more than her ‘reasonable expenses’. Sir Nicholas Wall made clear that the court’s paramount consideration is the child’s welfare, and that a birth certificate will be given as long as there has been no exploitation and the parents are not circumventing child protection laws in the UK.

In this particular case, two Indian surrogate mothers (carrying embryos created with the intended father’s sperm and eggs from the same anonymous donor) gave birth to a boy and a girl within a few days of each other, following a surrogacy arrangement commissioned by a British couple. A total of some £27,000 was paid to the Indian clinic. The court was ultimately satisfied that the parents were “entirely genuine and straightforward” and that “it is plainly in the interests of these two children that they should brought up by Mr and Mrs A as their parents”.

The case follows similar decisions by Mr Justice Hedley in the cases of Re X and Y (2008) in which British parents paid £23,000 to a Ukrainian surrogate mother, Re S (2009) involving a Californian surrogacy arrangement, Re L (2010) involving a surrogate mother based in Illinois and Re IJ (2011) involving a Ukrainian surrogacy.

Article: 13th December 2011 www.nataliegambleassociates.co.uk

Read more about surrogacy in the UK and internationally

Surrogacy: Parenting the hard way

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Alice Jolly and her husband knew they could offer a loving home to one of the thousands of British children awaiting adoption. So why were they forced to go abroad instead and use a surrogate to get the child they longed for?
The scene: a church hall in Oxford three years ago. My husband, Stephen, and I are attending a seminar for couples who want to adopt. A social worker stands beside a whiteboard and explains the process. I look around at the other couples. Their eyes are blank, puzzled. Some start to yawn while others scratch their heads. The social worker has become a tic tac man at a race course, frantically waving her arms, speaking a language that no-one understands. We all start to stare at our shoes. It’s becoming embarrassing – what are we doing here and who put these people in charge of something so important?

A man in the audience is trying to raise his hand but his wife keeps pulling his arm back down. He refuses to be silenced. “So any 16-year-old girl can go into an alleyway on Saturday night,” he says, “and have a knee-trembler with a bloke whose name she doesn’t know, and no one is ever going to ask about her suitability for motherhood. But I’m going to have to go through all this just to be a father?”

The room is silent. The man’s wife is tearful. A social worker crouching in the corner makes a note in her black book. We all know that this couple have fallen at the first hurdle. And yet he has only said what everyone in the room is thinking.

As we have a six-year-old son, Stephen and I decide that it might be best for us to adopt a child under two. No children under two are available for adoption in the UK – or at least none are under two by the time they emerge from our adoption system. And so we go to a seminar in North London about overseas adoption. There we are made to play a bizarre board game. Adoption Monopoly? Or is it Snakes and Ladders – but without any ladders? Each couple has a marker to move around the board. Cards are drawn from a pack. They say, “your paper work has been lost, go back three months.” Or, “the country you have chosen is now closed for adoption, go back to square one.”

Finally, it comes to our turn. “So, Stephen and Alice, where are you up to now?” “Well, I’ve just retired,” Stephen says, pretending to read the card. No one dares laugh or it’ll be back to the beginning for them. We break for a coffee and chat to other people. One couple can’t currently be considered for adoption because, although they are home owners and employed, they have £5,000 of credit card debt. Another couple used to live in Bedfordshire, and they got two years into the adoption process, but then they moved to Berkshire so they had to begin again.

After coffee, the discussion focuses on the difficulties experienced by adopted children. Two men interrupt – one is black, the other of Asian origin. Both of them were themselves adopted. The lady running the seminar is clearly uncomfortable with real-life multi-cultural adoption stories. But she presses them to express the anger they must surely feel towards their adoptive parents.

“Anger? I was in an orphanage in Thailand and my Mum and Dad adopted me, brought me back here, gave me everything. From an early age I wanted to be a musician and they made that possible. How could I possibly be angry?” Then the black guy says: “I was adopted from Ghana and for me it was certainly traumatic. Because every year my adoptive family in Hampstead wanted to celebrate Ghanaian National Day. So all my flabby, white relatives dressed up in African costumes and played drums. Man, I’ve been on the pyschiatrist’s couch for years…” Doubtless the names of these two have gone into the black book as well.

A one-to-one meeting with a social worker follows. It’s a scene from The Trial, by Kafka. We have to convince her we want a child, but we must not appear to want one too much. We tell our story: a stillbirth, four miscarriages, failed IVF. The social worker thinks we have too much baggage – but surely the truth is that most people who adopt do so because other plans have failed?

I mention that we’ve been told that adopting from Russia will probably take two years. No, she says. It will take four and most of the Russian babies have foetal alcohol syndrome. I have talked to a number of families who have adopted from Russia and they tell a different story – but I can’t say so. And so it goes on. No and no and no. We are guilty until proven innocent. Everything is a problem – the fact that we’ve lived abroad, that we have an existing child, that we both went to boarding school, that once every two months Stephen might smoke a cigarette in a bar.

But strangely, the biggest problem is that we are about to have building work done in our house. Until that work has finished, we can’t even start the process. As we drive home, Stephen is fuming and I am in tears. I know the social worker is playing games, trying to find out if we are serious. But could she not have offered some support or encouragement? I know that adoption isn’t easy – and that it shouldn’t be easy. But does it have to be negative, intrusive, judgemental and so painfully inefficient? Would they rather leave 100 children in care than relax their impossible demands for perfection?

Six months later we meet a lawyer who specialises in gestational surrogacy in the US. Nearly everyone who crosses her threshold has tried to adopt and given up. And US surrogacy? Well, it’s expensive and legally complex – but it can be done. We get in touch with agencies in the States. Yes, they say. Yes and yes and yes.

But I am unconvinced. To me, surrogacy seems bizarre and extreme. It’s from the world of lawsuits and reality TV shows. But then I talk to people with real experience of surrogacy and uncover a world that couldn’t be more different from those sensational media stories. A world in which women are genuinely trying to help other women overcome the pain of infertility.

Two weeks ago we came back from America with our baby daughter. She is called Hope. We are the luckiest people in the world. Throughout the whole process, I continued to doubt whether surrogacy can really work well for everyone involved – now I know that it can. But still I am left with questions about why we couldn’t have given a home to an existing child instead of creating a new one. And some part of me will always be haunted by that baby who we might have adopted – and who is probably still waiting for a family and a home.

Article: 15th November 2011 www.independent.co.uk
Photo: Alice Jolly, her husband Stephen and children Thomas and Hope by JOHN LAWRENCE

Proceeds from this article have been donated to SANDS (Stillbirth and Neonatal Death Society) uk-sands.org

Read more about surrogacy and egg donation at www.prideangel.com

Can you trust your surrogacy lawyer?

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Theresa Erickson, a high profile Californian attorney specialising in assisted reproduction law (self-styled online and in the media as ‘the surrogacy lawyer’) pleaded guilty last month to charges relating to her involvement in a baby selling scam. The case has sent shock waves through the US assisted reproduction law community, which is reeling at the disgrace of one of its best known members.
But although the story is shocking, I would hate to think that wider conclusions might be drawn about the way in which commercial surrogacy is practiced (legally) in many US states, or that US surrogacy lawyers in general should not be trusted. As well as being a story about the wrongs, this is a story of ethical boundaries being enforced, and a story of reputable US surrogacy attorneys who ensured that an unethical and illegal scheme was exposed and stopped.

How did the scheme work?
According to news reports and information posted online from those involved, Ms Erickson, working with another lawyer, Ms Neiman, and a third woman, Ms Chambers, recruited ‘surrogate mothers’ in the USA and arranged for them to travel to the Ukraine where embryos were transferred which had been created with donated eggs and sperm. The birth mothers were assured that this was perfectly legal and was ‘just another way of doing surrogacy’, and that there was a long list of intended parents waiting for their help.

Once the birth mothers were three months’ pregnant then – and only then – would the conspirators advertise for prospective intended parents. The couples who approached them were told, falsely, that intended parents had backed out of a planned surrogacy and that, for a substantial fee, they could step in. Ms Erickson then filed fraudulent papers with the Californian court to enable the parents to be named on the birth certificate. The scheme was said to have been carried out on at least twelve occasions.

What happened to expose the scam?
One of the birth mothers involved, suspecting something was amiss, approached another US assisted reproduction attorney for advice about whether this really was legitimate surrogacy practice. The attorney was concerned and contacted the chair of the American Bar Association’s Assisted Reproductive Technology Committee. He approached Ms Erickson to ask her about the scheme (she denied any involvement) and then, with the support of a colleague based in California where Ms Erickson was based, followed his professional duty to report dishonest or criminal conduct, and referred the case to the FBI. Following an investigation, Ms Erickson was charged and pleaded guilty. She is currently awaiting sentencing and faces up to five years in prison.
(I should add that the intended parents involved, all of whom were exonerated of any wrongdoing, have since been legally confirmed as the parents of the children they have, in effect, adopted).

Why was the scheme wrong?
This baby-making scam was so deeply and fundamentally wrong that it is difficult to know where to start. What shocks me the most, I suppose, was the flagrant disregard for all those involved – for the birth mothers who became pregnant on the basis of a lie (and the abuse of trust, relying on the reputation of a well-known lawyer, which that involved), for the intended parents whose desperation was exploited so greedily, and most of all for the preciousness of the lives of the children conceived, not within a loving family, but by design and for profit.

This was not, on anyone’s definition, really surrogacy. Under UK law, surrogacy involves artificial conception with the gametes of one or both of the intended parents (which quite obviously has to involve the intended parents from the outset). The rules are different in California, but surrogacy still has to involve an arrangement between specific individuals made before conception. Baby selling or adoption for profit is therefore probably a more accurate categorisation, although of course Ms Erickson was a well known surrogacy lawyer and so those involved were able to ‘sell’ the scam as surrogacy.

Interestingly, Ms Erickson was ultimately convicted, not of baby selling or any offences directly related to assisted reproduction, but of wire transfer fraud. Given the context, this has the resonance of Al Capone being convicted for tax evasion. However, I suppose it is appropriate that Ms Erickson has been held to account for deception (the scheme had, as I understand it, involved lies to the surrogates, the intended parents and even the Californian court). If the rules are anything like they are in the UK, whether or not she goes to prison, Ms Erickson will never be able to practice law again.

To read more go to http://bit.ly/ri0LQO

Surrogate mother abandoned with twins by intended couple

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Cathleen Hachey’s first try as a surrogate mother took a heartbreaking turn when she was abandoned via text message last spring, 27 weeks into the pregnancy she’d initiated to help another couple start a family.
The young New Brunswick stay-at-home mom was carrying twins for a British couple. But three months before Hachey’s due date, the couple declared their marriage had ended and they would not be coming for the babies.

Hachey, 20, who was already the mother of a 1- and 2-year-old, delivered the twins — a boy and a girl — on June 28. She was able to find the twins an adoptive home, but experts in the field say the episode is a lesson on the need for better safeguards for both surrogate mothers and the intended parents.

Without a lawyer or a fertility doctor to advise her, Hachey was left vulnerable and outside Canada’s fertility laws. “Here’s a lovely, trusting young woman who should have taken care of herself,” says Sherry Levitan, a Toronto-based fertility lawyer. “The law is there for a reason.”

Hachey, who lives in Bathurst, N.B., tried to do what experts say all surrogate mothers should do before she agreed to carry a child for the couple in Hertfordshire, England, whom she met through the website Surrogate Mothers Online.

She spent about six months getting to know them, speaking with them daily by phone. She met the pair when they flew to New Brunswick in November. The three signed a surrogacy contract prepared by the couple that declared them the child’s legal parents and granted Hachey $200 per month for expenses related to her pregnancy.

The trio decided Hachey would be a “traditional” surrogate: she would use her own egg and the husband’s sperm to conceive the child because the wife suffered from polycystic ovarian syndrome and was unable to conceive or carry a baby.

Surrogacy advocates frown upon this approach, and few fertility clinics will agree to inseminate women who choose it. So Hachey performed an “at home” insemination using a medical syringe and semen from a cup.

“Traditional surrogacy is too fraught with issues,” says Toronto fertility lawyer Nancy Lam. The child is genetically connected to the surrogate, unlike in a much more common “gestational” surrogacy, in which the surrogate mother carries a baby conceived with a donated egg and has no genetic connection to the child she delivers.

The traditional surrogacy complicated Hachey’s situation, leaving her even more vulnerable when the couple backed out 27 weeks into her pregnancy. The intended mother sent Hachey a text message stating the couple had separated and she wouldn’t be taking the unborn boy and girl because she felt that as a single mother she couldn’t care for twins.

“It said she mentally couldn’t handle herself right now,” Hachey recalls, “so she didn’t think she can handle two other human beings.” The expectant mother was stunned: “They were my biological children so they were my biological problem.”

With the help of a friend, Hachey did find a Nova Scotia couple who had been waiting several years to adopt and were overjoyed to take the twins. “It was hard,” she says. “If I was in a better position, I would have kept them.”

But she had to care for her two children alone because her fiancé left 18 weeks into her surrogate pregnancy. Faced with the prospect of sole breadwinner for a family of four, he said he couldn’t cope with the financial stress. They have since reunited.

The Star was not able to reach the intended parents in England.

To read more go to http://bit.ly/oZs986