Equality for All securing fair and equal treatment for all parents and children

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1 Equality for All securing fair and equal treatment for all parents and children Specialist human rights and discrimination lawyers They are outstanding. They are innovative, exciting to work with and imaginative, and give a fantastic service to their clients. Chambers and Partners 2014

2 Client Stories RKA s story RKA had a son through surrogacy in January After the happy news that the pregnancy was progressing well, RKA then faced having to plead with her employers for leave to care for her new born child. She was finally forced to accept unpaid leave as this was all her employers would offer and sadly, while on leave, she was made redundant. Leigh Day, acting on a no win no fee basis, brought a challenge against the Government for failing to provide equivalent employment rights for RKA as a mother of a child born through surrogacy. RKA secured compensation for the loss of maternity pay which, we successfully argued, should have been paid. Compensation was also paid for the loss of legal protection in redundancy situations that a woman on maternity leave or parents on adoption leave acquire. RKA and her son Dawn and Genna s story Dawn and her family In 2011 Dawn and her civil partner, Genna, began to explore having a family. After three unsuccessful rounds of IUI treatment, which they personally funded, Dawn was informed she would need full IVF treatment to have the chance of conceiving successfully. Dawn s GP referred her for NHS funded treatment however their local health authority refused the application on the basis that they were in a same sex relationship. After threatening court proceedings and protracted correspondence between the lawyers, the health authority finally withdrew their decision and offered Dawn NHS funded treatment. Compensation was also awarded for the discrimination Dawn suffered. The treatment was successful and Dawn and Genna just celebrated their first Christmas as a family of three.

3 Human rights issues in Surrogacy Along the surrogacy journey there are many potential areas for human rights and equality issues to arise. Some will be specific to the circumstances of those on the journey, others we see as affecting anyone having children through surrogacy. It is a widely held view that surrogacy law in the UK is not fit for purpose and we believe that some of the changes which organisations such as Brilliant Beginnings and Surrogacy UK are campaigning for may be achieved through litigation, as well as achieving the desired outcome for individual parents or children who are disadvantaged by the current failures of the system. Areas where human rights issues arise and we may be able to assist include: Equal employment rights Although the Government have stated that the law will change some time next year, there currently remains no requirement to grant equivalent employment rights to parents of children born through surrogacy. Some Intended Parents manage to successfully negotiate an acceptable arrangement where they receive equivalent leave/pay to those on maternity or adoption leave, however many in our experience don t. We have experience in assisting during the negotiation stage as well as by bringing court proceedings after the event as in the RKA case referred to in this guide. Rights as a parent in NHS hospitals A common concern raised with us is the lack of recognition given to Intended Parents in hospitals. We recommend addressing this up front with the hospital and may be able to assist with challenging any unreasonable refusals to recognise the status of Intended Parents, including restricting their ability to be present at antenatal appointments or during labour. What are reasonable expenses? We understand that some Intended Parents are concerned about the lack of national guidance on the meaning of reasonable expenses. Without this it is sometimes difficult to know in advance whether your proposed arrangements for surrogacy are lawful and whether ultimately this will impact on the application for a Parental Order. Seeking national guidance (and challenging flawed existing policies and guidance) is an area in which Leigh Day has achieved multiple successes, including in relation to information on medical treatment. Babies in legal limbo Although there is a process for the granting of parental responsibility to Intended Parents, this can take many months. This leaves the child in legal limbo despite there being many, almost mandatory, situations in which the child requires a person with parental responsibility to give or consider giving consent on their behalf from innoculations and hearing tests to applying for passports. We believe this is unlawful and that no child should be left in this legal limbo regardless of their journey into the world.

4 Human rights issues in Surrogacy Out of time for a Parental Order application We believe there is no good reason for there to be a strict time limit on applying for a Parental Order and that the central issue should always be the welfare of the child. We believe that anyone who falls foul of this rigid requirement, for which there appears to be no reasonable basis, may have grounds to pursue a legal challenge to the framework preventing them from gaining a Parental Order for their child. Access to NHS funded fertility treatment for surrogacy Surrogacy is outside the scope of the current NICE guidelines on Fertility issued in February From information we have received, this is used as the reason to refuse NHS funding in some areas and there remains a postcode lottery regarding whether or not any or some funding is available to those having children through surrogacy. If you have been refused NHS funded treatment we can advise on whether you can bring a legal challenge against the refusal. Prohibition on single parents Currently single people are not entitled to apply for Parental Orders which effectively prohibits them from having children through surrogacy. We can see no good reason for this prohibition and would consider the possibility of a legal challenge for anyone in this position. Next Steps If you are facing any of the above issues or feel you have been unfairly treated, then please get in contact. We will offer an initial consultation free of charge before confirming how we can assist and possible funding arrangements. We currently act for clients on a private client basis (including with capped fees), and where possible on no win no fee agreements, using legal expenses insurance or legal aid. Telephone: mvarney@leighday.co.uk Website:

5 Merry Varney Merry is a Solicitor in the human rights team at Leigh Day. Merry qualified in 2004, having trained in a leading city firm, who seconded her to the Mary Ward Legal Centre and Liberty s Human Rights Litigation Unit. Having qualified, Merry spent several years working at Liberty before joining Leigh Day in Merry specialises in challenges against public authorities with a particular interest in equality, healthcare and social welfare. Her work covers a broad range including claims for compensation, judicial reviews against local and national public authorities, representation at Inquests and complaints to professional regulators. Merry works with individuals on legal aid, no-win no fee and a private basis, and with charities and NGOs. Merry s recent successes include the client stories referred to in this leaflet as well as a successful Court of Appeal hearing in the highly publicised case of David Tracey concerning the use of Do Not Resuscitate orders. In this case Merry, on behalf of her client, is seeking an Order from the Court to compel the Government to issue guidance for patients and their families on how resuscitation decisions are made Merry Varney is absolutely brilliant. She is extremely efficient, she has a tactical mind and she is a very kind woman. Chambers guide to the legal profession Merry Varney is particularly well regarded for her expertise in cases concerning equality and discrimination. She has a very sharp eye for the detail of a case and very good knowledge of human rights law, state market sources Chambers & Partners 2014 Just when we thought there was no hope we found Merry, She was the light at the end of our tunnel. After all the heartache she helped us achieve the best gift we could ever have wished for, our beautiful boy. Dawn

6 Leigh Day s human rights and civil liberties lawyers are one of the leading teams of practitioners in this specialist area in the country. Bringing together a mixture of public law, civil liberties, discrimination, employment, education, health and social care expertise, our lawyers act for individuals, groups and organisations across a wide range of legal areas with the common thread that we challenge the lawfulness of decisions, acts, omissions and policies of public bodies and authorities. Leigh Day also offers specialist legal services for personal injury claims, medical/clinical negligence claims, international claims and representation in Inquests. Everybody there is rigorous and methodical, and very diligent. They take on the difficult cases challenging the government where others might lack the guts. They have always treated us with the utmost respect and kindness, and were highly professional in all aspects of our case. I would recommend them to anybody. They are without doubt at the top of their profession. Leigh Day, Priory House, 25 St John s Lane, London EC1M 4LB T F E mvarney@leighday.co.uk