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Love, Death and Taxes: Alternative Families and the Law

Posted on 4 November 2021

Mishcon de Reya's Pride Network and the Gay Women's Network recently hosted a panel discussion on:

  • modern family building,
  • looking at considerations around co-parenting,
  • same-sex parenthood,
  • surrogacy,
  • donor conception
  • adoption.

The panel, introduced by Mishcon de Reya Partner Maria Patsalos and moderated by Antonia Felix, a legal director in Mishcon de Reya's Family team, also comprised: Michael and Wes Johnson-Ellis, co-founders of My Surrogacy Journey; and Fiona Mallin, psychotherapist and counsellor, Capital Minds.

This live, in-person session was held on 27 October 2021. All information was correct at time of recording.

Maria Patsalos 

For those that don't know me, my name is Maria Patsalos, I'm a Partner here at Mishcon de Reya I'm also part of the Gay Women's Network's Theorem Committee as well as Mishcon Pride Steering Committee.

We are hosting with Antonia Felix who is a Legal Director in the Family Department; she’s part of our Surrogacy Group here at Mishcon and she will be the Chair of the panel and then we have Fiona on my left, she is a psychotherapist and counsellor who specialises in all things family, infertility, child relation, child issues as well. And then we have Wes and Michael in the centre who have done incredibly amazing things, for so, so what they've done is they have used their experience in relation to their own surrogacy journey and they've set up various companies; My Surrogacy Journey, this year they started an educational convention in London to teach and help LGBT families in relation to adding to their families going forward. So with that I'm going to hand over to Antonia to take us forward in relation to the questions.

Thank you very much.

Antonia Felix 

I was thinking about what to say when I was writing this and it took me back to when I qualified as a solicitor 12 years ago and how many developments there have been for the LGBT community and in more recent times, which was well needed, and in 2005 same-sex couples could become civil partners and then that extended to marriage in 2013 and going back to 2009 it became possible provided certain criteria was met for non, non-birth mother in a same-sex female relationship to be legally recognised as a child's second legal parent. 

And just some statistics for you, in 2000, female same-sex couples had 471 rounds of IVF and by 2018 it was 4,750 and it wasn't until 2010 that it became possible for unmarried couples and same-sex couples to apply for parental orders in surrogacy cases, and parental orders are the orders which transfer legal parentage from the surrogate and her husband or partner to the intended parents of the child, This was further updated in 2019, which is very recent, so that single applicants can apply for parental orders in surrogacy arrangements.

So since 2005 unmarried couples and some single applicants can now adopt and the Equality Act 2010 provides protection from discrimination from LGBT communities, surrogacy laws are very out-of-date and start to go back to the 1980s when there was a case called Baby Cotton and it was the first commercial surrogacy case and it got, it stirred up lots of sort of legal and political issues and after that an Act - the Surrogacy Arrangements Act 1985 was rushed through and not particularly well thought about, but to prevent commercial surrogacy and that's where I think people get the notion that surrogacy is illegal in the UK. It's not illegal, it's commercial surrogacy that is. You can still have surrogacy in England provided only reasonable expenses are paid to the surrogate and surrogacy agreements aren't binding or enforceable but they're encouraged.

Whether you do international or domestic surrogacy, the most important thing is to take advice early on because if you are bringing the child back to England that the, the most important thing is that the surrogate is the legal parent of the child whether or not she's genetically linked to the child it doesn't matter and so the most important thing is that you apply for a parental order here so that you have legal parentage transferred to you as the parent. 

There is various criteria that you have to meet in order to obtain a parental order and one of them which is limiting in some respects, is that you have to be biologically linked, one of you or if you're a single applicant you have to be biologically linked to the child.  There are some top tips in terms of if you're thinking about surrogacy it's just to get legal advice - and I would say that - but early on, because knowledge is power and that's my favourite saying, it's just planning.  And so there are other routes and one of them is adoption and adoption can take a bit of time, but there's overseas and UK adoption and there's also step parental private adoption if a child's already part your family and you want to become the legal parent and you can now as a single applicant adopt a child and there's co-parenting where people have informal arrangements because they have a friend or they just want, they decide to have a child and they think because they know someone well that there won't be issues.

But again it's really important to think about the parental responsibility and the legal parent side to it because, you think about everything before it happens. Reach an agreement, put it in writing, it's not enforceable or binding but it's really important because it sets out your intentions.  And then again donor conception,  it's really important again to look into the agencies and the clinics sorry, that you use but also if you're married and you're not married if you're married you've got slightly more protection but if you're unmarried again it's, it's the legal parentage and the parental responsibility that you want to be advised on and you know, I would say use a clinic because they screen first for sexually transmitted diseases and genetic disorders whereas if you don't use a clinic you don't necessarily have that protection

And that's kind of the whistle stop tour moving on to these guys.

Wes

Wow yeah so I'm Wes and this is my husband, Michael we have two children through UK surrogacy, we have a daughter five, Tallulah and we have a son who's two, who's a little horror at the minute called Duke. We looked at all of our family building options predominantly around surrogacy and we decided that after exploring all of those options that UK surrogacy was the best fit for us and that was primarily because we actually wanted to be present during the pregnancy, we wanted to find a surrogate that met our values and was, was we could you know, form a continuing relationship post-birth.

Michael

But I knew it wasn't going to be easy and I knew there'd be a ton of research and just understanding what surrogacy was because there was so many websites telling me what surrogacy wasn't, but nothing that really that was supporting the type of journey, how I thought it was going to look. There were no role models for us to look up to, other gay or queer men that were having families and having children, there was there was none of that so we kind of had to do it all ourselves.

So we, in the UK you can approach a number of non-profit organisations for surrogacy; there are four currently, at the time there were three but we approached all of them but all of them had their books closed, couldn't accept new intended parents because of a shortage of surrogates, so we had to do what was known as an independent journey and what that means is that you have to do everything for yourself, you find your own surrogate, you would source a donor, choose the clinic, you would get legal advice separately and you would build it all yourself and at the time it was really daunting and we made a ton of mistakes, but it kind of led to I guess what we've built now and the start of that was creating an organisation called Two Dads UK.

Two Dads UK was I guess the shop front really to kind of shine a light on our family and to show people that we're no different than any other parent you know, and I say this a lot, we you know we still have all of those junk cupboards that Cis, hetero parents have you know, plastic cups falling out on you and you know it's the, the, the house is chaos and noisy and sometimes messy, it's just the same you know, our children are just loved by two men.

Wes

But if you wind back when Michael just mentioned we made mistakes, we didn't know what we were doing, no one advised us, there was very little research, there was very little organisations to offer support. So when we went through our journey, like we made a mistake, so our children are not biologically linked because we made mistakes.  We didn't want other future intended parents to make the mistakes we did we…

Michael

…And by that, so the biological link was I'm linked to Tallulah and Wes is linked to Duke but when we did our first round of egg collection our donor who was sourced through the clinic, she agreed to donate again for our sibling journey because we always were very up front of doing a sibling journey but unfortunately she got quite sick and couldn't donate again. We wanted our children to have that genetic link and to one another and, and that was one of our biggest mistakes, so it's one of the things that we tell people that are on a journey to making when you're creating embryos to do that in, if you can, do all of that from the get-go.

So then along our journey we you know, we had our treatment, we had a really successful embryo transfer, we were fortunate that our first transfer worked and then the clinic discharged our care and then we were let go into the NHS and that's where it all started to fall apart a little, because that's where we were told what we couldn't do and what we could do and the, the biggest obstacle that we, that we were told was that Tallulah or our baby would have to be handed over in a car park and not on hospital premises and we couldn't be present at birth because the Surrogacy Arrangements Act of 1985 would class that because we weren't the legal parents at birth, handing a baby to us on NHS property would be against the Surrogacy Arrangements Act and the hospital.

Wes

So we came out of that consultation obviously very deflated but we actually said, we're just not going to put up with that. So we had been dealing with a lawyer who - great recommendation get legal advice - we've been dealing with a lawyer who was, who was, who was advisers on surrogacy generally because that's what we always advise people is, understand the law and understand how it applies to you and the journey you're about to go on and we just said to our lawyer look we've just had this consultation this just does not feel right it's, it's upset us and it just doesn't feel right can you have a look at it. So she went away, she came back and there was over 14 counts of discrimination from the Equalities Act.

Our lawyer sent a letter of intention to sue the Trust. There was lots of wrangling between the two and the Trust acknowledged that they got it wrong and we worked with the Trust, we had to compromise, we didn't get everything that we wanted but ultimately if you wind forward we agreed a birthing plan which we were all happy with.

Michael

The Trust rewrote the policy and that was then rippled out through the NHS and through certainly through the North West and 34 of the Trusts rewrote the policy as a result and then because of that we got asked by the House of Parliament to come and sit on the All-party Parliamentary Group Surrogacy Law Reform Council and contribute towards the law which is currently being performed.

Fiona

I am going to focus more on the emotional side of the journey and Antonia's very clearly set out the legal side and Wes and Michael talked about their own experience. But when I was thinking about what to talk to you about this evening, the phrase that kept coming into my mind was, I'm sure some of you know this phrase but, an ounce of prevention is worth a pound of cure.  What I find in my work is people generally come to see me when something has gone wrong and I find myself thinking about that phrase sometimes and thinking, you know what I wish you'd just come sooner but we are where we are so, we can't do any prevention but let's see what we can do around cure.

So really my job, as I say, is to help people when they're in difficulty and say, look what have we got to and now what we can do.  I guess generally speaking and global pandemics aside, well-educated, well-positioned people in the UK are used to getting what they want.  We're used to getting what we want because we work for it, we plan for it, we feel like we earn it but as every single person in this room knows, that doesn't work when it comes to love and it really doesn't work when it comes to having children. So, we can be as clever as we want, we can earn as much as we want but we can't always control this part of our lives and so what I'm hoping to do today is to talk to you about how you can in some way control some aspects of it and make your, your journey easier.

I know Antonio's talked about the legalities and, Michael and Wes have talked about the process but I really want to talk about the feeling and so I’m going to ask you some kind of how and why questions, just to really get you thinking because I know we don't have a lot of time but to put the most obvious question out there; why do you want to have children?  Do you really or do you think you should or does your mum want you to have a baby or are your friends having babies or do you just think it's the right time, or you might miss the boat?  Some people tell me, actually you know what, I wish I hadn't had children and that's something to think about too, that when you're at the other end of the age spectrum as I am you can look back and think, was it right, was it not right and to really learn to trust your own judgment as to whether you individually or as a couple actually want a baby and then if you do, why?

The other thing that comes in a lot is, especially in same-sex couples if they're female, is who's going to carry the baby? and why? and all the feelings that could come around that.  I don't think these issues are thought about enough prior to the commissioning of surrogacy or donation and that's primarily because all of us are the same in this regard that as soon as you want a baby you want one.

The main message is to… if you are thinking of going on a surrogacy journey or doing gamete donation is to give yourself a little bit of time beforehand and really think about yourselves and what you want from parenting and what you think any eventual child might want from you. 

Antonio Felix

Is there anything you would have done differently now with the benefit of hindsight?

Michael

Apart, apart from the egg situation at the beginning definitely and I'm not saying because Fiona’s here, Emotional support going through fertility treatment, whether you're going through surrogacy or you're going through shared motherhood or IVF or IUI, like Wes said you don't know what you don't know and we were quite blasé about wanting to speak to a therapist or a counsellor because you know, I'm fine, I'm comfortable with who I am but fertility treatment and family building is super stressful on all of you involved and we, we pushed our marriage to the limits because we didn't talk and we wish we would have done that sooner because it would have saved a lot of, a lot of heartache.

Antonio Felix

We spend our lives in any scenario worrying about what other people think about us and there's that great quote of, what someone else thinks of you is none of your business, which I really like. But it had… do you… can you help or do you help people manage other people's expectations around their decision making for family building? Because it's often, it might be a parent or because it, as you say, it shouldn't be, but it's still a taboo subject or people don't really understand it and if you get a reaction from someone you love that isn't the reaction you want or need it can be not very nice.

Fiona

Yeah.  Yeah and I completely agree with that and I think one of the things about a little bit of forward planning, is to stop the kind of hijacking situation that, that straight couples don't come across. So no one would say to you know, to my husband, oh is that your baby and yet I'm same sex couples find this these kinds of questions all the time and you know, for people who are more enlightened would never dream of saying that but not everyone is on the same page here so I kind of think about anti-hijacking questions. So think in advance, if someone asks you these questions what do you feel comfortable sharing?  It's nobody else's business what you do with your life but sometimes when we get caught on the back foot when somebody asks us an unexpected question, we can feel that we may have to answer.  You're not under any obligation you know to explain your life or your decisions to anyone that you only share what you're comfortable sharing.

Thank you very much.

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