Surrogacy for Same-Sex Couples
Organised by the Bar Lesbian and Gay Group and the Gay and Lesbian Association of Doctors and Dentists
Bar Council, 289-293 High Holborn, London WC1V 7HZ
Tuesday 3 December 2013
This event, hosted by the Bar Council, looked the options and potential pitfalls same-sex couples can face in accessing surrogacy both in the UK and overseas. Although both the Bar Lesbian and Gay Group (BLAGG) and the Gay and Lesbian Association of Doctors and Dentists (GLADD) helped organise the evening, presentations tended to the legal over the medical.
The audience was overwhelmingly male, with only a handful of women present. This was probably down to the fact that lesbian couples only need to access surrogacy if one or both have fertility issues; not so for gay couples looking to start a family.
Sam King, a barrister at Four Paper Buildings, began with a quick overview of the legal framework post-Human and Embryology Act of 2008, which allowed same sex couples to both be legal parents. The talk focused on the need to apply for parental order in cases of surrogacy, as in the UK the gestational mother (surrogate) automatically becomes the legal mother, and if she is married her husband becomes the legal father.
Sam was keen to stress that this position has not changed in English law, even if a child is born outside of the jurisdiction and whatever the rules are in that jurisdiction might be. The real concern is that the commissioning parents for the child might not take legal advice and miss the opportunity to apply for a parental order, which must be done before the child is six months old.
There are many other key requirements for applications for parental orders and King's main recommendation was to go into surrogacy with 'eyes wide open' by taking advice before acting. This is particularly important as couples often forget about immigration and probate issues which can cause problems further down the line.
Richard Perrins, a solicitor at Natalie Gamble Associates, then looked at surrogacy issues that are yet to be tested in court. One key question is what might happen in the event of relationship breakdown after a couple had entered into a surrogacy agreement. Currently parental orders are available to couples in an enduring relationship, and not to single people.
So, what would happen if an intended parent died? Natalie Gamble replied that she had worked on a case where the intended mother died two days after putting in an application for a parental order. The application was ultimately successful but had the woman died before the application was made it would have been impossible for the surviving partner alone to see things through.
Natalie Gamble and Helen Prosser recently launched a non-profit organisation Brilliant Beginnings (see BioNews 719) and they gave their talk together. Brilliant Beginnings was set up to promote and support those using surrogacy both in the UK and internationally but also to campaign for change in the law.
Since launching Brilliant Beginnings, Gamble and Prosser have received around 90 enquiries from commissioning couples but only 12 from potential surrogates. The idea that surrogacy is illegal in the UK still lingers, they said. That is, of course, wrong, but there are restrictions on advertising and third-party brokers. Raised awareness of surrogacy's legal status is clearly necessary.
There was much focus on where couples go when seeking surrogacy abroad. Recent changes in Indian law mean that same-sex couples can no longer access tourist visas for surrogacy (see BioNews 729) and the widely publicised anti-gay laws in Russia make it unlikely as the next growth destination for same-sex couples. The USA looks more promising as it has a regulated system of commercial surrogacy.
Brilliant Beginnings are campaigning for four main goals: for more women to come forward as surrogates; for greater acceptance of surrogates; for better laws allowing a professional and regulated system of surrogacy and for single people to have access to surrogacy.
Dr Susan Bewley gave an impassioned speech on IVF and surrogacy focusing especially on the risks for surrogates and the potential problems associated with multiple births.
Dr Bewley said that lesbian couples might be advised to try a more DIY approach first rather than going straight to IVF treatment if there isn't any history of medical infertility.
Towards the end her talk turned to the unconventional as she discussed research into male breast feeding and even the possibility for male pregnancy.