Fertility tourism – not a vacation Louisa Ghevaert Partner, Porter Dodson LLP

1. Fertility tourism – not a vacation Louisa Ghevaert Partner, Porter Dodson LLP www.porterdodsonfertility.com

2. Fertility tourism • Various factors influence fertility tourism: • Lower treatment costs – exacerbated by inadequate NHS funding and high costs of private UK treatment; • The growth of a global fertility sector and power of the internet; • Greater choice and availability of donor gametes; • Different rules and treatments allowed – single embryo transfer, sex selection, types of patients.

3. Legal issues • No international harmonization of law around the world. • Different rules apply which creates international conflicts of law. • If patients conceive through donation or surrogacy: • Will they be their child’s legal parent? • Does UK law apply? • Are they adequately legally protected at home? • Think carefully before suggesting treatment abroad.

4. Wider issues • Lack of counselling before fertility treatment: • Gatekeeper function; • Welfare of the child considerations; • Suitability of patient; • Signposting for expert legal advice. • Additional emotional stress associated with fertility treatment abroad. • Heightened risk – patient care, management of complaints, reputation management and success of medical practice.

5. Families of today • Complex legal issues can arise when fertility treatment abroad is combined with alternative family structures: • Solo mothers and fathers; • Known donor arrangements; • Co-parenting arrangements; • Same-sex families; • Families built through surrogacy; - Complex family structures (international connections, difficult emotional background); - Restructured families following relationship breakdown.

6. Legal problems • Legal disputes can arise if patients are not aware of the UK legal framework: • Importance of a known donor agreement; • Role of a co-parenting agreement; • The application of legal parenthood; • The significance of immigration law; • UK public policy restrictions governing surrogacy; • Criminal offences that apply in UK law.

7. Parenthood: egg donation • UK law stipulates woman who gives birth is the legal mother. • UK law applies extra-territorially no matter where in the world conception takes place. • Significance of a non identifiable donor. • Difficulties importing remaining embryos into the UK in future. • Different standards of medical care (language barrier and redress if problems arise). • The importance of a specialist Will (legal guardianship, Trustees).

8. Parenthood: sperm donation • More complex parenthood rules apply for sperm donation. • Spouse is second legal parent no matter where in the world conception takes place. • This is irrespective of biology (includes a lesbian non birth mother). • Unmarried partners are not legally protected: • No legal status if conceive abroad; • Can be overcome (eg marriage/civil partnership prior to conception or post birth adoption). • Significance of a specialist Will.

9. International surrogacy • Growing demand for international surrogacy. • Lack of regulation at an international level. • No automatic recognition of foreign birth certificates or court orders in the UK. • Can leave children stateless, parentless and stranded abroad. • Complex High Court case to obtain legal status post birth. • Criminal offences apply – legally restricted in the UK.

10. Internationally surrogacy con’d • Relevance of a written agreement. • Importance of specialist Wills. • Pitfalls to watch out for: - Lack of biological connection; • Intended parents with foreign connections (English domicile); • Single patients; • Amount paid to the surrogate; • Complex court proceedings; • Co-operation of foreign surrogate mother.

11. Conclusion • Fertility tourism is not a holiday. • Do not underestimate the legal difficulties. • There is no substitute for expert legal advice. • This is a growth area, with many potential pitfalls. • This remains a fast moving area of law and policy.