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Modern Family: Surrogacy

Posted on 30 September 2021

The Mishcon Academy Digital Sessions.  Conversations on the legal topics affecting businesses and individuals today. 

Emma Willing

In this episode, what is the current status of surrogacy law in the UK and what are the challenges faced by intended parents and surrogates?  What is being done to change this and how is the most recently created non for profit surrogacy organisation My Surrogacy Journey, founded by Wes and Michael Johnson-Ellis helping to change and reshape the landscape of surrogacy in the UK?

Hello and welcome to the Mishcon Academy Digital Sessions podcast and to this, the first episode in our Modern Family series.  I’m Emma Willing, a Legal Director in the Family Department at Mishcon de Reya and I’m here today with Antonia Felix, also a Legal Director in the Family Team.  We are very excited to be joined today by Michael and Wes, Co-Founders of My Surrogacy Journey.  Michael and Wes are proud dads to Tallulah, who’s four and Duke, two, both born via surrogacy.  Following their surrogacy journeys, Michael and Wes founded TwoDadsUK and most recently, My Surrogacy Journey.  Michael and Wes are on a mission to educate and support those embarking on surrogacy journeys in new and creative ways.  This has very much been informed by their own experiences. 

Antonia Felix

Thank you for joining us today, Michael and Wes.  Before we get going, why don’t you tell us a bit about your family and My Surrogacy Journey and TwoDadsUK. 

Michael Johnson-Ellis

Okay, well that… thank you first of all, that was some special intro.  So, we have two children together.  We have Tallulah who’s four, as you mentioned, and Duke who’s two and we always wanted to use surrogacy as a way to build our family and when we met, back in June 2012, I was one of those people that had that conversation quite early when I met Wes. 

Wes Johnson-Ellis

Luckily, I was drunk. 

Michael Johnson-Ellis

Super early I was like, so I need to know if you want children because I really want to be a parent and it was always our go to mechanism to build our family, it was always that route to parenthood was surrogacy, wasn’t it? 

Wes Johnson-Ellis

Yeah, I think having that biological link was always something that we felt really strongly about and was something that was really important to us and which is why surrogacy was the perfect route for us to build our family.  As Emma mentioned, we’ve got Tallulah who is coming up to five, who is a little tornado.

Michael Johnson-Ellis

She really is.

Wes Johnson-Ellis

And Duke who is… just turned two.  He’s also following in his sister’s footsteps, who is equally a little mini tornado.

Michael Johnson-Ellis

Yep. 

Antonia Felix

Two tornadoes

Wes Johnson-Ellis

Yes.  What a house. 

Emma Willing

So you’ve obviously been incredibly busy, particularly in the last 12 to 18 months, founding My Surrogacy Journey, particularly during a global pandemic whilst juggling parenting for Tallulah and Duke.  So, can you tell us just a little bit more about TwoDadsUK and My Surrogacy Journey?

Wes Johnson-Ellis

Sure, so not long after we had Tallulah, we… I say we, Michael, decided that we were going to document our journey using our social channels so, you know, Insta, Facebook and it was really just to try and help people understand what a two dad family looked like and try and make it more accessible and more normal.  I don’t like to use that word but it kind of… that was the objective, is to try and help people understand that we’re just… yes, we’re two dads but we’re ultimately just parents like anyone else, trying to bring up our children, trying to keep them alive and trying to do the best for them really.  And also one of the main drivers was that when our children go to school, we want to try and educate people so that they aren’t just seen as the kids with the gay dads, they’re just seen as themselves and the fact that they have two dads as parents really is insignificant. 

Michael Johnson-Ellis

One of the reasons was when we were embarking on wanting children, it was three and a half years’ worth of research, you know, travelling around the globe, understanding where we could have children because there are countries that you can’t, countries that you can and because we didn’t want to adopt, we had to dive deep into, you know, the internet and it was draining and it was exhausting and we kind of said to each other, I don’t really want anyone else to have to do that, there’s areas where you can be exploited and it’s just, you can just go down a very, very confusing and dangerous path with surrogacy and we wanted to document the fertility journey and to… and I like using the term ‘usualise’ so we really wanted to usualise our family rather than normalise, I think normalise was a word we were using but I much prefer usualise now because it’s more about putting our family unit front and centre and kind of saying, we’re kind of no different, you know, it’s yes we’re two men but it’s still really hard, you know, it’s still sometimes not very fun. 

Wes Johnson-Ellis

And then we just started informally helping people.  People would reach out to us.  We created a website and it was just really trying to create a space where people could find some support or find some help and we started doing, you know, just free consultations with sets of intended parents, just really understanding, you know, how do we achieve what you’ve got?  What does that look like?  How do we embark on that journey?  How does it work?  Where do you go? 

Michael Johnson-Ellis

And we did all of that whilst still having full-time jobs, doing other stuff and we would do, you know, four, five, six consultations a night and they were often an hour long – a week rather – and we just invested all of that time, just helping people. 

Wes Johnson-Ellis

Generally we’re signposting people to other organisations and just really kind of giving them an idea or an overview of how they could achieve it but then I think we realised quite quickly that it was just getting too much and it was getting too big and that we needed more of an infrastructure in place to help support people better rather than… and also more of infrastructure to help us manage that process as well and then Covid kicked in and, you know, everything kind of stopped and we had crazy lives anyway but all of our work stopped so, we’d been thinking about, you know, how we can evolve that infrastructure and how we can create an organisation that helps people with a more structured approach and then when Covid kicked in, that was the ideal time for us and then we kind of had this discussion like we’d previously been putting it off because we didn’t have the time because everything else was taking priority and then when Covid kicked in, we just kind of had a bit of a couple of weeks kicking around, enjoying lockdown as a family but then we realised that this was a prime opportunity for us to actually think about we’re going to do, how we evolve it and this is where My Surrogacy Journey was born and then we started, you know, really trying to understand how what that looks like, how do we better support people, what are the components that we found lacking in our journey, where did we find lack of support?  So, we kind of got everything together and that’s really when My Surrogacy Journey was born. 

Emma Willing

And just on that point, so we actually haven’t covered yet but could you tell us a bit more about the journeys that you had with Tallulah and Duke?

Wes Johnson-Ellis

Yeah sure.

Michael Johnson-Ellis

Um, so, we wanted to do gestational surrogacy and for those that are listening, you know, gestational surrogacy is when the surrogate is not genetically linked to the child so we needed to have an egg donor and we were always going to use my genetic material first because Wes has a seventeen year old daughter and I was so eager to be a parent.   So, we embarked on that journey, we chose a clinic near where our surrogate was from in Manchester and we began searching for an egg donor through the clinic and our first journey was really straight forward, really simple, we froze extra embryos so we managed to keep those on ice for future children…

Wes Johnson-Ellis

But I think it’s also we’re saying just pointing out is that, you know, there are two routes in which you can choose to support your journey through surrogacy.  When we started our journey, the not for profits that were available at the time, were just not accepting any intended parents so we had no alternative but to go down what’s classed as the independent sector or route with you know typically Facebook groups and social media and credit to my husband, that is not my bag and I just couldn’t do it and I wouldn’t last two seconds on the groups because I would just be kicked out but Michael persevered and Michael put the energy and effort into those groups which is how we found our surrogate.

Michael Johnson-Ellis

And that’s kind of where we built up the networks through our journey so by having to go down an independent route rather than an organisation because they all had their books closed…

Antonia Felix

Is that just timewise because you would have to have waited two years or it was nothing, they wouldn’t take on anyone?

Michael Johnson-Ellis

They wouldn’t take on anybody.  So, in 2014/2015, it was a period where there was a real extreme shortage of surrogates and an overwhelming number of intended parents and if you look at some of the stats of surrogacy, that’s just before the numbers start to peak so, it was shortly after marriage equality so, again more people were turning to surrogacy as a way to build their family.  So, we went down that route, as Wes mentioned, and because again, it’s this phrase that Wes uses quite a lot, you don’t know what you don’t know so, we were like, oh what’s the worst that can happen, we’re going to have to find out all this information ourself but it will be fun.  It wasn’t really fun at all and it was quite lonely and really unsupported and we made mistakes and…

Wes Johnson-Ellis

We made some major mistakes, you know, our children are not biologically linked because we made mistakes, you know, and there was no one there to support us and tell us clinics at the time, you know, weren’t really thinking that far ahead and thinking about how they can support them, they were just really just thinking about the mechanics of the treatment and not actually understanding, you know, the decisions that people are making and the potential outcomes of that. 

Michael Johnson-Ellis

There was no clear defined pathway for two men going through fertility clinic and that’s something that we challenged and we almost forced the industry to change because it was very much you’re infertile, you’re here, be grateful of treatment and this is how you are going to create your embryos and when you’re in a same sex relationship having surrogacy and IVF, you arrive at that point really excited because it’s your… it’s the way you want to build your family but when…

Wes Johnson-Ellis

Yeah, and you’ve often, you know, really thought about this for a long while so, actually going to your clinic is really the first stage of it actually happening.

Michael Johnson-Ellis

Happening. 

Wes Johnson-Ellis

But to be treated and to be spoken to like, you know, you’re ill and that the pathway isn’t an emotional, joyous celebration, it normally comes from a place of loss or sadness which is where heterosexual people arrive at a fertility clinic from.  So, it was really interesting that we worked really hard to help clinics understand the difference and how they could support people better. 

Emma Willing

Yes, because that’s also how people react isn’t it?  When you tell someone, oh have you thought about surrogacy?  Or that’s what you’re doing, people either don’t know that it exists or think, ooh, ooh right, and it’s that real surprise because it is associated to many people with a long journey of someone not being able to have a baby and then it being a last resort and I think that’s what we’re excited about with My Surrogacy Journey is it makes it less of a last resort and more of an option at the beginning. 

Wes Johnson-Ellis

Absolutely.  You still get people thinking it’s illegal still, you know, and it’s about how do we educate people generally about surrogacy?  How do we educate people to understand what surrogacy looks like and how accessible surrogacy is and can be?

Michael Johnson-Ellis

And I think it’s really important to celebrate surrogacy, you know, you look at what this… what you achieve from this wonderful act, where it’s incredibly, you know, regulated here in the UK from where the unclear 11.31 you know, work with the clinics and the way organisations are supporting intended parents and surrogates and known egg donors.  It should be a real celebration of family building and that’s what hasn’t previously happened and that’s exactly what we want to change. 

Emma Willing

You obviously, as you’ve touched on, you went down the independent route and obviously there’s lots of potential pitfalls with that.  How do you think your experiences informed what you’ve created with My Surrogacy Journey?

Wes Johnson-Ellis

They are fundamental actually in terms of I think what really shapes My Surrogacy Journey is the mistakes we made and when we look back retrospectively at both our journeys, some of the challenges we faced, emotionally, you know, they were… our second child nearly broke us, you know, and I think it’s not necessarily as a result of surrogacy but it’s the support and the strain and pressure that a surrogacy journey can put on a relationship and I think if you are aware of what that journey can look like, some of the challenges that are faced and if you are equipped with the tools to deal with that and you can see it ready to happen, I think you stand a much better chance of having a really successful journey and also enjoying that journey and looking back on it thinking I did as much as I could and I was supported as much as possible and I think, just refer to the independent sector, it’s like how do you get all of that in the independent sector?  You know, if you’re going through it, you just rely on lots of people’s opinions and lots of anecdotal information and none of it is clinically led, none of it is professionally led, it’s just massively open to interpretation and how do you know if you are doing the right thing?  How do you know if your surrogate’s telling you the right thing?  These are some of the real critical points that I think people struggle with, with the independent sector and from our point of view, we always tell people everyone has a choice but there’s risks associated with the independent sector and why would you make one of the… probably the biggest decisions of your life and not put the infrastructure or scaffolding around you to support you in making that to be the most successful thing it can be?

Antonia Felix

Yeah, because the relationship between the intended parents and the surrogate is so important, isn’t it, in terms of trust and it being a two-way process that if that goes wrong, that can also make it such a different journey to someone else who has a really good relationship with them. 

Wes Johnson-Ellis

Absolutely.  Absolutely.

Michael Johnson-Ellis

It’s the foundation of everything, you know, it… that is what is has to be built on currently and that relationship has to be completely watertight and there needs to be all the appropriate measures in place to make sure that everyone is all on the same page and those conversations are all had at an early point.

Wes Johnson-Ellis

And I think it’s also about making sure that both parties understand all the components, go into this with their eyes wide open and are making the best informed decision but what I often see is that people aren’t going into it with their eyes wide open, they think they are but they’re not and often the relationships are more challenging and there’s more friction further down the line and often that friction occurs when pregnancy is in place and then there’s very little that can be done to try and mediate that journey and you’ve just got to then put up with it and we think that no one should have to put up with anything when they’re going through a surrogacy journey, it should be the best it can be because you’ve put the resources around you to help it be as supported as possible. 

Antonia Felix

And I know that you had to work but it’s also educating hospitals, isn’t it?  And midwives and doctors because if they don’t know anything about then they’re not going to be able to support everyone at the birth and during the pregnancy. 

Michael Johnson-Ellis

Yeah absolutely.  And that all happened when we went for our 12 week scan and it was quite clear at that point, firstly when we walked into the waiting room, everyone was just bewildered why there was a woman and three men.  So, you immediately thought, oh gosh this is going to feel really awkward, and then when Caroline got called and we all got up and went into the room, the sonographer put her arm across the door to say, no, you… why are you all coming in here?  And we were like, oh no this is our surrogate and she was like, you could see that she… they weren’t quite comfortable and the conversation with the consultant wasn’t much better, it was telling us what we couldn’t do, what couldn’t happen, that our child would have to be handed over off hospital property, that we…

Wes Johnson-Ellis

Yeah, basically the consultation was all being driven by this outdated policy document…

Michael Johnson-Ellis

The policy the hospital had.

Wes Johnson-Ellis

…and he was just reading it to us about, you know, so this is what happens here and this is what happens here, with no real consideration given to what was in front of him because he clearly hadn’t dealt with anything like this before so his natural response is to well, what does the policy tell me I have to do?  One of the things we do, and have done right through all of our journeys, is we just get a feeling about something and just always feels right that’s how a bit of our mantra with our relationship and we came out of the consultation and I said to Michael, this just is not right, you know, there’s… it just wasn’t right and we just weren’t prepared to accept it, which is one of the common themes with Michael and I, which is probably why we’re here today, you know, we just don’t accept that type of thing, we’re not just going to put up with it.  So, we came away from the session and we’d already engaged a lawyer to deal with our surrogacy, we’d got independent legal advice, which is what everyone should be recommended.  So, our default was to, you know, speak to our lawyer and say look, this has just happened, this doesn’t feel right, this is what they’re saying, can you have a think about, you know, what does that mean to you from a legal point of view? 

Michael Johnson-Ellis

And the response was surprising and there was a case and there were twelve counts of discrimination under the Equality Act and we had a letter drafted to the particular NHS Trust.  They responded immediately and were incredibly compliant and saw that this needed to change and worked with us to change that and as a result of that, we got no more, no less than what we wanted, you know, we wanted a regular birth, we wanted to be present.

Wes Johnson-Ellis

Yeah, we didn’t want Mariah, we didn’t want unicorns, white lilies, we didn’t want any of that, we just wanted everyone else was getting.

Michael Johnson-Ellis

Yeah, you know that vision of leaving the maternity ward holding a car seat, with your partner’s hand and you leave as parents.  That’s all we wanted and we got all of that.  I think the only exception that we couldn’t get was having our surname on the wristband because purely from a safeguarding point of view, it had to have the surrogate’s surname so they printed us off another one so we had one to keep in our baby box.

Wes Johnson-Ellis

But I think it’s about letting people understand why these things are important.  Now, for us, that was a really… well, let’s call it a deal breaker because it was, because that was going to be the first thing that had our child’s name on it so, for us that was a really important thing but all we kept hearing from them was oh, the system doesn’t allow that and it’s trying to get Trusts and people to understand that the system, yes might be this but this is why this is so important.  So, we did have to compromise on some bits and this wasn’t about us trying to get any financial gain from the Trust, it was all about us just trying to have the experience that we deserved as human beings and that everyone else gets to.  So, the Trust turned it around, they worked amazingly with us, you know, and once they recognised that we weren’t getting the care that we deserved, we were switched to a different consultant, we had consultant led care all the way through, we had an amazing midwife.  We just had a very, very pleasant experience, which is what everyone should have but we shouldn’t have to threaten to sue them to get that.  So that really prompted us, once Tallulah was born is that Michael started working with NHS England to try and look at… they were due to do a policy review so, they reviewed the guidance notes for surrogacy policies which then went out to every single trust and legally, the NHS trusts have to change their policies to fall in line with the changes in guidance.  So, once all of that went out, not stopping there, we…

Antonia Felix

Trailblazers.

Wes Johnson-Ellis

Well, we decided then to do a Freedom of Information request to every trust with maternity services and ask them two key questions.  Michael, do you want to…?

Michael Johnson-Ellis

So, the 2018 guidance came out for healthcare professionals.  That was the piece that we worked on, to make sure that it was really compliant, that the language was really in keeping and that care was no more, no less than anyone else having a baby.  Then we decided to do a Freedom of Information to see okay, so this great piece of Department of Health and Social Care guidance came out and let’s see how many Trusts have actually read it and implemented it. 

Wes Johnson-Ellis

Well also, how many Trusts actually had a surrogacy policy.

Michael Johnson-Ellis

Yeah.  So, we asked two questions.  Do you have a policy?   And when was it last updated?  That would tell us if they’ve implemented it and less than 15% had updated it so, we were like okay.  So then we decided to go back to our lawyers and say let’s do full judicial review for anyone that doesn’t have a policy within the next six months so, we’ll give everybody a timeframe and let’s see.  And that was… we so nervous pressing that button because that could have been ridiculously expensive for us.  So, we pressed the button and wrote to every single chief exec, gave them the notice and then within eight months 97% of NHS Trusts changed their policy to the guidance so, that now meant that the UK is compliant to the legislation.  They all sent us their policy to review as well as for evidence so, they were please review it, can we have your thoughts, are there any other comments we should make, is it inclusive enough?

Wes Johnson-Ellis

And also if the policy is there then the team in the maternity services are being trained on what should happen and that’s a really crucial thing, you know, we’ve had multiple calls from intended parents in distress when dealing with a Trust and we’ve helped them get, you know, what they need or help them navigate those conversations with the Trust and this again, you know, through our experiences, one of the key elements that you get as a support mechanism with My Surrogacy Journey because not every Trust is going to be inclusive, not every Trust is going to take into account the elements that I needed for a surrogacy and this isn’t just for intended parents, this is for surrogates as well because they’re often left out of the loop, they don’t fall into the normal pathways around maternity services so we just want to make sure that everyone’s acknowledged, everyone’s taken care of and that there are policies in place to ensure that everyone knows how people going through a surrogacy birth should be treated. 

Emma Willing

There’s a three year age gap, I think I’m correct, between Duke and Tallulah so, did you notice a difference in approach by the NHS Trusts when you had Duke compared to Tallulah?

Michael Johnson-Ellis

Oh massively, yeah and it was really lovely because we had the same consultant, the same lead midwife and the same team that care for us.  We even went in the same theatre and had the same side room when Duke was born but what was really pleasant about the whole experience is that there was no anxiety with it because they were really excited when we came back and they’d updated their policy again and they were like, oh we’ve got a new version and…

Wes Johnson-Ellis

...And they’d learned so much. 

Michael Johnson-Ellis

They’d learned and what was lovely is that particular Trust now became a Centre of Excellence in the Northwest for other Trusts to replicate their policy so, it had then radiated out to other regions because they were seen as having the best surrogacy policy.  So, the lead midwife, Caroline Broom, who is a phenomenal woman, she couldn’t wait to show us the policy, couldn’t wait to get us all involved again and we just… the care was just phenomenal…

Wes Johnson-Ellis

Phenomenal.  It was exceptional and, you know, I was talking to, you know, a leading midwife and she said not everyone gets that care, you know, there are inconsistencies with it but I think one of the big differences for us from first to second was that as part of the negotiations around our birthing plan for Tallulah, we weren’t able to go into theatre but what happened is, Caroline went into labour though the night and the theatre suite was quiet so when… we were just in a side room and Caroline asked the theatre staff if we could come in so, we were just expecting for the baby to be brought in to us and then Caroline’s husband comes in with no baby, we were like…

Michael Johnson-Ellis

We were like, oh my god, what’s gone wrong.

Wes Johnson-Ellis

…what is going on?  So, he was like, quick get some scrubs on, you’re going into theatre, you’re going to see your baby born.  So, we flew into theatre and it was amazing, you know, everyone deserves to see their child being born but what was so crucial is that when we went with Duke, they said you can go into theatre, it was planned and they’d kind of realised the challenges that that scenario had faced and my view is, well if we can go into theatre the first time, why can’t we go in second?  And we should always be having that conversation.  Now we always acknowledge birthing is never straightforward and it does not often go to plan and there are occasions where, you know, professionals need to take control and manage the situation but wherever possible, intended parents should be given access to be able to see their baby being born, whether that’s an elective C-section, you know, a natural delivery, there should always be that conversation and everyone should be involved in it which is why we advocate so much about having a real, robust and talked through birthing plan with the healthcare professionals and surrogate and intended parents and one of the benefits of My Surrogacy Journey is working with the Mindful Birth Group to ensure that everyone understands the components of birthing and can make the best informed decisions based on the knowledge they now have and I think often, particularly with same gender couples, is that if you haven’t been through a pregnancy before or a birth, how would you know what to expect and, you know, one of the key objectives of My Surrogacy Journey is about preparing people for what is coming, whether that’s to be a new parent, the birthing process, education, those are all of the components of the membership that’s included.

Antonia Felix

That’s brilliant.  So when you had both Tallulah and Duke and you leave the hospital, what were your experiences with the legal side of it?

Michael Johnson-Ellis

We had a lawyer for our parental orders for both of our children because, again, that legal recognition is the most important part of the journey and I don’t think often people look at it that way.  You are focussed on getting pregnant, you are focussed on the baby arriving safely, obviously, but there’s still that real crucial piece of legal parentage that you need to get right and we have always been advocates of people having legal assistance and advice and support through the entire process and we get that it’s not everybody, we understand that but it’s the most important journey that we’ve ever done together, with the exception of getting married, and we are huge advocates for that’s what we should do and it was a massive help for us because we were sleep deprived, we were then juggling two kids, we went back…

Wes Johnson-Ellis

We didn’t want to miss any deadlines, we just wanted to make sure it was all put together properly.

Michael Johnson-Ellis

We went back to work after two days and six weeks so, we weren’t in the right state to be filling out all of these forms. 

Wes Johnson-Ellis

And it’s actually quite a daunting process, even actually attending Court for your first Parental Order.  You don’t know what to expect, you know, we were talking about getting a Barrister to go, just for the hearing and stuff, I mean that wasn’t necessary in our case but no one was telling us, no one was advising us what to expect.  I mean, it was a lovely, lovely experience, you know, the Magistrate gave Tallulah… we didn’t even take Tallulah, we were that nervous about it, you know, and they gave Tallulah a teddy and a card and it was just such a lovely, lovely experience and I think people don’t know what to expect and that’s where they need the support to help them understand, you know, for Duke the Parental Order was a breeze, we were in there less than ten minutes, we felt a little bit robbed actually but there was less anxiety, it was really straightforward.

Michael Johnson-Ellis

And we took both kids, we took both of them and then we, you know, we had the photo behind the Magistrate’s desk and it was everything that we wanted the first one to be like but, again, we didn’t know so…

Wes Johnson-Ellis

And not everyone’s case is straightforward.  There are complexities, you know, there are elements that do legal support on and we would always advise people, again, go into it with your eyes wide open, if you need support, get it and if you think you can do it on your own, be as informed as possible. 

Emma Willing

You’ve obviously both been very instrumental in changing NHS policy and we also understand that you’ve done some amazing work in terms of the UK Law Reform.  Obviously, there’s the much anticipated Law Commission recommendations, which are due to come out next year.  What are your hopes for those recommendations when they come out in 2022?

Wes and Michael Johnson-Ellis

I think the main one that every intended parent wants to see is that recognition of birth.

Michael Johnson-Ellis

Yeah, that’s my number one.  I speak to a lot of intended parents and the first thing that comes in their mind and the first thing they talk to me about are the anxieties around parental responsibility and the whole, you know, six weeks and one day and, you know, that just throws a load of headaches for people.

Wes Johnson-Ellis

So, if you are looking from a parental point of view, that’s the most important for us.  I think, as well, to aid and support more intended parents and surrogates, you know, seeing that release or removal of the advertising of surrogates but to also take it one step further almost and because of the amount of support that we offer surrogates and intended parents, you know, we can absolutely legitimise the support that we’re giving these women and people that are doing this particular act.  We hope that that changes so more and more people can understand surrogacy and get involved with surrogacy.

Michael Johnson-Ellis

Yeah, I think the biggest thing for me is that I speak to so many intended parents often, you know, without heterosexual members often with really challenging fertility journeys, often with lots of loss and it would just be so amazing to try and allow more women to help people achieve their family goals through surrogacy and help people understand how accessible it is.  The law is so restrictive now, you know, when we started My Surrogacy Journey, we got legal advice on where the line was around the Surrogacy Arrangements Act and how far up to the line could we go because we wanted to push boundaries but equally we didn’t want to end up in prison because that’s not good for our kids but being able to let people know how accessible surrogacy is, to be able to, not advertise because I think that’s a crude word but just to be able to be out there and let people know accurate information, you know, about how they can achieve being a surrogate and again, all of the surrogates that we speak to, they all… most of them say I’ve been wanting to do this for years, there must be more women out there who’ve wanted to do it for years but just don’t know how to do it because the law prohibits us from giving them that information really readily. 

Wes Johnson-Ellis

From an international point of view, I think some of the parental process could be simplified and unfortunately, I don’t think the review was really focussing too much on international, it was just looking purely at UK which is a real shame that that wasn’t picked up. 

Emma Willing

Yeah, because one of the biggest things we have when we talk to clients in the early stages, if they’re wanting to fact find before they proceed, is when you’ve got different jurisdictions and, you know, one might have a link to France, one might be UK, one might be America and they’re trying to work out the best way and there are so many moving parts and the need for so many different advisors and different countries and it can feel just really overwhelming for them. 

Wes Johnson-Ellis

Yeah. 

Emma Willing

And there’s also often a misunderstanding with the international surrogacy arrangements that even though the intended parents may be recognised, for example, in jurisdictions such as California, as the legal parents that when they come back to the UK, they still need to go through the Parental Order application process. 

Michael Johnson-Ellis

Absolutely, yeah.  That’s massive.

Wes Johnson-Ellis

And that happens.  We hear that all the time.  Another one that’s just popped into my head that I think would be wonderful to see change and to help change that landscape again, is the double donation element and just allowing people, or removing the genetic link, I think is really important for the trans community and for those that have suffered, you know, severe infertility or are building their family a little bit later in life.  Removing the genetic link I think is a real special piece that I really hope goes through because I think that’s just going to create more wonderful families doing it that way.

Michael Johnson-Ellis

And I think what you say Emma about the misconceptions around, you know, parental responsibility and where their child is born versus where they are registered or domiciled is one that is massively misunderstood and again, you know, we get more and more intended parents now with different nationalities and want their children recognised in their mother country so, there are lots of different components and like you say, moving parts to it but people just don’t understand all of the elements and that’s one of the big issues I think with international surrogacy, it’s getting all of the information available because there’s, what I say to a lot of intended parents who want to use like the States as an example, there’s never just one route, there’s hundreds of routes to create a family in the States, it just depends on all of the components.

Emma Willing

And that’s where you come in really, isn’t it, where people feel overwhelmed, they should obviously talk to lawyers but talking to you with My Surrogacy Journey and working out who the best people are to talk to, otherwise I think people have a scattergun approach don’t they where they think if we talk to fifteen agencies and whatever it is and then they’re so overwhelmed by the information, also some are just completely different in terms of how they approach it so it’s coming to you so that you can help streamline it. 

Michael Johnson-Ellis

Absolutely and, you know, we make no qualms in the fact that we’re not for everybody and we’ll say that to people, you know, this is about choice, it’s one of our main values is about choice and we have no issue letting people know what those options look like and if we are for them, then brilliant, you know, we’re going to be their biggest cheerleader and support them on that journey but choice is really important and the problem is, when you are looking at all of that different options and choice, you do spend more money than you need to, you do get more confused, your journey takes longer so, we like to break down how that journey is represented in a real straightforward approach with incredibly individualised pathways that we’ve designed for all of our members. 

Wes Johnson-Ellis

We do the work for them so, you know, we can give them a comparison chart that shows, you know, the key agencies, the key differences, what they’re particularly looking for to help them make a decision.  There is a flipside to choice though, isn’t there, you know, particularly in the States, there’s thousands of agencies, there’s thousands of clinics, there’s thousands of, you know, everything to do with surrogacy and how would you then make that choice and particularly if you’ve never experienced having to deal with this before, you know, our advice would always be, particularly with an international journey, is put a team of good people around you to help you navigate and support you on that journey but, you know, for some people you just can’t help them, they just want to go on their own and do it and, again, everyone has a choice but often what we hear is those who go out alone, spend more money, take longer and have more disappointment. 

Emma Willing

Yeah.  And for us, the intended parents of course take advice from the family law side but also immigration side, depending on, you know, again, we live in a world where people are flying around all over the place and they might be going back to live somewhere in a couple of years’ time where they want to then take their child and they might have different rules over surrogacy and names on passports etcetera.  It’s really simple things that people think they can just do themselves but actually if you’ve got the right assistance, it’s much easier and, as you say, actually people can’t focus on it at the time, they’re tired or they’re so excited they’ve got their baby that they then don’t want to go back to more of the information gathering stage, that’s why it’s better to do it earlier. 

Wes Johnson-Ellis

It is.  It’s about being really informed and understanding all of the impact of the decisions you’ve made about creating your family.  A key one for the US, is tax.  You know, if your child is born in the States, they’re liable for tax, you know, and a lot of people just don’t understand that and that’s why, you know, getting the right advice before you start your journey as well as on your journey, is really important. 

Emma Willing

Thank you so much for joining us today.  Just briefly before we wrap up, what lies ahead for you both and for My Surrogacy Journey in the next twelve months?

Michael Johnson-Ellis

Gosh.  I would like to say… I would like to say we’d have a rest but I think…

Emma Willing

Wouldn’t we all.

Michael Johnson-Ellis

I think, you know, if we stop, we just collapse.  Yeah, we’re not going.

Wes Johnson-Ellis

Yeah, we’re better at this pace. 

Michael Johnson-Ellis

I think we need to look at how we can help more of our European intended parents.  We’re looking at how we build a pathway for those to do international surrogacy because most of Europe is illegal for surrogacy so we’re looking at how we can help that pathway along and then who knows if, you know, there’s some more to be done in the States. 

Wes Johnson-Ellis

I think the key thing for us is support, you know, whether you are going on a domestic journey or an international journey, what we’ve recognised and what we see massively is there’s a real lack of support and everyone works in silos and no one pulls it all together.

Michael Johnson-Ellis

Yeah, and that’s one of the things that we think we’re pretty okay at.  It’s bringing people into a room and us all having that conversation together, as advocates for a particular topic or subject, it’s not about all competing, it’s about best practice and everyone upping their game to provide a better service so, anything that we can do to create a slicker managed service, whether that’s in Europe or in North America, is something that we’re really keen to do. 

Wes Johnson-Ellis

And also, it is about continuing to change the landscape in the UK, continuing to advocate for surrogacy, continuing to allow people to understand it better and give everyone a greater access to surrogacy, whether that’s for surrogates or for intended parents.  I think one of the biggest things we find when we talk to intended parents is that they just don’t know and if we can make surrogacy more mainstream, if we can make it more socially acceptable then more and more people are going to benefit from it.  There’s so many people, you know, we speak to people and we just want to fix them, we just want to help them, you know, create their family but we can’t do that alone, we need to work with people, we need to work with organisations who are going to help us change the landscape and get the message out there. 

Emma Willing

Well, your energy is infectious and the fact that you can survive on, well, the hours that you do, is amazing.  So, we are very excited to be part of the journey as well, if we can be?

Wes Johnson-Ellis

We’re delighted to have you guys on board and I think, from our partners day, we genuinely mean it, it’s like we just want to work with everyone as much as we can to help try and change the landscape but also, it has to be reciprocal, you know, we’re in a partnership, a partnership has to be a two-way thing and balanced so, how can we work together and how can we plan at what the future looks like?

Emma Willing

Well for now, let’s wrap up there.  I’d like to say thank you so much to Michael and Wes for joining Antonia and me for this Mishcon Academy Digital Sessions podcast.  I’m Emma Willing and do look out for the next episode in our Modern Family series. 

The digital sessions are a series of online events, videos and podcasts, all available at Mishcon.com and if you have any questions you’d like answered or suggestions of what you’d like to cover, do let us know at digitalsessions@mishcon.com.  Until next time, take care. 

The Mishcon Academy Digital Sessions.  To access advice for businesses that is regularly updated, please visit mishcon.com.

In the first of our Modern Family series, Legal Directors Antonia Felix and Emma Willing discuss UK and international surrogacy with Michael and Wes Johnson-Ellis, founders of My Surrogacy Journey and TwoDadsUK.

They discussed:

  • UK and international surrogacy issues
  • Michael and Wes’ personal experiences of surrogacy following the birth of their two children via surrogacy
  • The purpose of TwoDadsUK and My Surrogacy Journey
  • Challenges faced by Michael and Wes when founding My Surrogacy Journey during the pandemic, while juggling parenthood.


Visit the Mishcon Academy for more learning, events, videos, podcasts and reports.

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