 Llywodraeth yma ym Mhwylwch gyda'r hyfforddiant yn seirigosu arall yn ym Gwynedd, yn ymgolwch yn ymwylwch cyfrifwyr. Fel hyder o gyflau'r Abol Cymysgedd subscribers yma y bydd yma yma gyda'r llymysgau ar gyfer Siarugosu. Roedd yma y bydd ei gwneud bod y gallwn i siarugosu arddig a oeddon nhw'n gwneud mwy o anthes llwyddiadau y mae oedd gael ei bod yn ei wneud yn ymwylwch upn ei gyflawnodd. Ych yn ei wneud i gyflawnodd incerigol I haven't really thought about this until now, but over four and two weeks ago, I've just gone to try and get a British passport. I can't get a British passport. I need to be back within three weeks because I've got a child at home who's got maybe special needs and can't really get away. Can you sort it out and you say, well, no. I'm fortunate because I'm a family lawyer, I say first step you need to go and speak to an immigration lawyer. Thank you for that to me. And then we'll sort out the parentage afterwards. But because of the way that the law currently stands, I don't think, and I know that all of the practitioners that I come across who do this kind of work, we don't think that the law adequately safeguards the best interests that are currently being born through surrogacy arrangements to UK parents, either domestically or internationally. The United Kingdom is not the destination for international couples to undertake surrogacy within the UK, so the domestic surrogacy that takes place, by and large, I'm not saying it's exclusively related to that, but by and large it relates to domestic couples undertaking surrogacy here, so UK parents undertaking surrogacy within the UK. But we do have a significant number of intended parents who undertake surrogacy arrangements overseas. My practice is mainly dealing with international parents. I think that has reflected on most of the practitioners who do this kind of work because we're not, as Claire said, UK lawyers are not allowed to be involved in the facilitation of the surrogacy arrangements themselves. So advising on the terms of the surrogacy arrangement, if we were to do that, we would commit a criminal offence. So the involvement that we can have as family lawyers is fairly limited to the establishment of parental rights, and I'll come on to it a little bit later, but we have a slightly different process of domestic surrogacy, which is more informal, and most people undertake that with our lawyers. So what are we dealing with? I mean, what is the, how far has surrogacy spread? What kind of numbers are we thinking about? Well, we don't have any exact statistics in the United Kingdom on the number of children that are born each year through surrogacy. We do have statistics on the number of parental orders that are made each year. And in 2018, in England and Wales, there were 367 parental orders made by the courts of England and Wales, which is increasing year on year by contrast in 2011, just 117 parental orders were made. So that's a three-fold increase of parental orders made in the space of just seven years. And we don't know the precise breakdown, or I don't know the precise breakdown, of domestic versus international surrogacy arrangements. The consultation paper put out by the UK Law Commission estimates that the three surrogacy organisations in the UK, but not the proper organisations, that surrogacy UK brilliant beginnings and cuts, assist between 60 and 80 intended parents each year. But by no means does that 60 to 80 intended parents reflect the full number of domestic surrogacies that take place in the UK, because we do, that doesn't necessarily account for the independent matches, the cases where intended parents have a prior relationship or friendship with the surrogate, or indeed what we see on the ground, a growing number of matches made through social media platforms in Facebook. When we look at the number of international cases, I found some statistics from CAFcast, which showed that in 2014 to 2015 CAFcast, which is effectively the court welfare service in England and Wales, received 242 requests for parental order reports. Of those 242, 38% were allocated to the CAFcast side court team. The CAFcast side court team is a specialised team in London with predominantly deals of high court cases, but what that means in parental order cases is that at least 38% in 2014 to 2015 were international parents because domestic cases wouldn't be allocated to the high court team, and they lived within London because by 2014 somebody ends taking international surrogacy arrangements who lived in Nottingham would be allocated in Nottingham office. We also don't know how many people who undertake surrogacy overseas are applying for parental orders, and there are a number of reasons why people won't apply for parental orders following international surrogacy arrangements. They are more likely to apply for a parental order following a domestic arrangement, and that's because our birth registration legislation requires, and the HFEA 2008 Act requires the surrogate to be registered as the mother on the birth certificate, and so if you have two men, for example, and they have a child through domestic surrogacy, they can't go to the register office and register that child first, because the registrar is going to be wide enough to know that that does not happen. So they will ask where the parental order is, and so the birth initially has to be registered with the surrogate as the mother, but as we know in many international arrangements, intended parents come home with the intended parentage reflected on the birth certificate, whether that's by operation of law following court orders that might have been made in, for example, California, or by operation of law in the Ukraine where there's no judicial or court process to go through, but that's just the way that the law has developed and how the registration of birth works. So I would estimate that around half, possibly over half of our surrogacy, of our UK parents are undertaking surrogacy overseas, but it's probably a fairly even story. We've heard that the parental order in the process in the UK is a post birth process. We know that the legislation says that there is a six month time limit to make the application, although that's fairly flexible nowadays, but generally speaking applications are lodged within six months of the child's birth, and as we hear the consensus surrogate is not validly given until the child is at least six weeks old. It is possible to lodge the application practically before the child is six weeks old and you just have to get the consent after the six week mark. The procedural rules that apply to parental order applications in England and Wales and the practitioners and the judges in the room who practice in this jurisdiction will laugh at this, but the procedural rules require that the first hearing for parental order must be heard within four weeks of the application being held. I issued an application in April and was given a hearing at the end of October, so there is a long delay in the courts being able to deal with these administrative ones to get blessings. At the first hearing, the rules provide that the court should direct that a parental order reporter prepare an independent report on the statutory criteria and addressing issues of welfare. A parental order reporter is a qualified social worker who works for the capacity court welfare service and ordinarily that will entail then by appointment going to meet with the family normally at home, spend a couple of hours with them. They will talk to them about why they came to surrogacy, what their experience has been, what their relationship is like with their surrogate, how they plan on telling their children about surrogacy. That is a huge aspect of a lot of the approach that is taken by parental order reporters. With same-sex couples, that is often quite easy because it is obvious to children as they go up that they have two daddies and they will ask why do I have two daddies. With some of the heterosexual couples who have struggled with impatility, it might be possible and previously I know when I started doing this about eight years ago I was coming across some intended parents who were saying this is just going to be a cover-up. I will wear a pregnancy suit during pregnancy and to the world at large, I would be the genetic mother. I have not come across that recently and thankfully so, but this is something that the court welfare service is alive to. The overall time scales for a parental order after the parental order reporters come in, the application comes back for final hearing, hopefully, if everything is in order. The time scales vary, but I would say between six and eight months is a realistic time estimate for most UK parental orders. That process normally I would say is slightly quicker in domestic cases. The reason for that is because international cases are heard in the family court by high court judges and domestic cases are heard in the family court by lay magistrates. For those of you who are not from this jurisdiction, there are two far ends of the spectrum in terms of levels of judiciary. Lay magistrates will be three. Not legally qualified people, they make decisions in these cases and in the more straightforward cases. High court judges are very experienced, normally very experienced barristers or very experienced judges who can move the layer up through the ramps and high court judges are the highest level of first instance judges in this country. So, we do have to see a different approach between domestic and international parental orders. They both apply the same law, so section 54 of the human fertilisation act applies regardless of whether you are making an application following a child born being so contract through surgery or if you are making an application following a child born in San Diego, California. But the approach that the courts take in the international and domestic cases do from what we see as practitioners value, and the main issue is the issue of payments and how the court approaches those issues to payments. And we've seen that section 54 provides that the court needs to be satisfied that no payments other than for expenses recently incurred need to be, could account have been made unless authorised by the court. So, in a straightforward altruistic surgery arrangement where you have just met the out-of-pocket expenses of the surrogate you do not need to get the court to authorise retrospectively those payments because they are admitted by section 54. What we see in a lot of domestic cases, and again this is as a result of the way that the law stands at the moment in terms of the regulation, the criminal sanctions that exist under the surrogate arrangements act. But also I would suggest, because lawyers are not involved in the drawing up of these agreements, is that where in for example a US arrangement we will be able to produce to the courts the surrogacy agreement, we will be able to produce to the court the extra account so we can show what payments have been made to the surrogate. And we can say okay, that's the maternity clothing, that's for travel, that's for counselling. But this is the basically and we can work out and it's normally in the US arrangements, it's normally made over instalments, nine or ten instalments over the course of the pregnancy. And that figure is what we ask the court to authorise. In England we generally don't see that. We see a lot of the arrangements, when the arrangements are drawn up, that will say they agree to pay the surrogate, her reasonable expenses of £12,000, £15,000 and what's happened on the ground in the magistrates court is that there is a going rate. There is a range of acceptable payments that the courts see and if they fit within that rate they don't require any form of authorisation. The first time I did a domestic case, I'd done many more international cases before I'd done a domestic case. On to the magistrates court with my skeleton argument, going through the bank statements that the parents have produced and saying this is what they've paid but part of that was for a recuperation holiday so they'd agreed £12,000 but they said as part of that that's going to include me being able to take my children on holiday to Tenerife for a week. And I said well technically under the law that probably needs to be authorised but I'm asking you to authorise it. You're able to authorise it. Here's the case law, made in good faith, open and honest with the dealings. No attempt for the authorities to be upfront about it. And the legal adviser who is the qualified lawyer who advises magistrates in this country looked to me and said this is a consent application, what do you do? And I said well my job. I have to apply the law and this is what the statute said. And that is not the approach that I would dare to take in the High Court and I say that with many of the judges that I appear in front of on a regular basis in the audience and quite rightly so. But we come back to this discussion about whether in the UK we should be allowing payments, whether we are allowing payments already. And when I, in the run up to the consultation paper coming out from the law commission, I was absolutely terrified with what the law commission was going to say about payments in particular. Because there seems to be, even in the professionals and the organisations within the UK that want to see surrogacy reform but don't see surrogacy as exploitative, there is a difference of opinion about whether or not we should allow payments or whether or not we are actually allowing payments now. And I was completely relieved when I read the law commission's consultation when they said that we've not found terms altruistic and commercial to the useful descriptions in considering either the current law or possible reforms. The key difficulty is that the terms themselves can mean different things to different people. In particular, the description of UK law as altruistic has often been linked by stakeholders to the limitation on payments that can aid surrogates for their expenses. But the link between payments for surrogates and altruism is however contested. Now, over the years I've been doing surrogacy work, I have dealt with lots of types of cases, domestic, international. I've dealt with cases from the US, from Canada, from India before India closed down, from Thailand, from the Ukraine, from Georgia. And what we see, and particularly I see this quite prevalently in Canadian, I mean Canadian is more altruistic similar to the UK model but particularly in US surrogacy which is we would consider commercial surrogacy. You can have altruism and compensated surrogacy per existing. One of my first cases that I did following an American surrogacy agent was a second time parent. So it was the same sex couple where they had a second child through surrogacy. Their first child, UK citizens lived in the UK, but they had lived in the US and they had their first child while they were living in the US so they didn't do a parental order process for that child. They moved back to the UK and when I was preparing their evidence I was asking what's your relationship with your surrogates and they said well which one? Because they had two different surrogates and they actually had two different egg donors. What they did in this American commercial environment which a lot of people see as being exploited, they knew their egg donors, they knew their surrogates and whenever they visited the US and they did this every year they hired a house in I think it was in actually Massachusetts and they in the summer and they had a big garden party and they invited both of their egg donors and both of their surrogates to come year on year out. Now that is fairly unusual, I mean most people will maintain contact with their surrogate and have an ongoing relationship but what it shows is that although the surrogate and the egg donors in this case has received compensation there was a degree of altruism and those children will grow up knowing exactly who their surrogate is, exactly who their egg donor is. They are not going to have any questions about their origins and the circumstances of their birth and it just really highlighted that even if there is a level of payment involved in these arrangements it doesn't necessarily mean that those women who have received their payment so if they wanted to walk away and have nothing to do with it they were fully entitled to but they really wanted to have an ongoing involvement so the two between commerciality and altruism can exist and we've also seen cases domestically, I was involved, I represented a child in a case and I know a few of the other lawyers in the case who were also involved in this. There was a reported case of Ms Justice Russell, I think it was called EABC and there were domestic surrogates, there were same sex parents, they had traditional surrogates they had three traditional surrogates within the space of six months. It wasn't through a surrogatee organisation that we met their surrogate online or it was kind of facilitated by an online platform through Facebook and the case became very complicated because they did a lot of media interviews following the birth because there was a public interest story because of these two men with three babies aged within six months of each other and as a result of that somebody contacted CACAS and said I know this group of people and they tell the courts that they've paid a much lower fee than they actually have and the courts had to grapple with that Finally, final hearing on parental order applications in the High Court take 15-20 minutes maximum, depends, the judges will have read everything beforehand they may be slightly longer if there are issues about domicile This hearing took, I think it was two or three days, hearing evidence with cross-examination from the parties and that was because there was a misunderstanding really of what UK law allowed and actually what they had paid would have been authorised in the case of asking the court to authorise it so I'm going to end now because I see a big approach from within but we really do need change in the UK and yes, thank you