• April 2004 – The Assisted Human Reproduction Act is passed. The Act does not ban surrogacy and non-commercial surrogacy arrangements can still be made. Surrogates can also be used by AHR Clinics who can be paid for providing such services. Unlike the UK any contracts or agreements entered into for surrogacy may still be recognised in certain Canadian provinces.
  

• Section 6 Assisted Human Reproduction (AHR) Act 2004 -  this made it illegal to pay a person to act as a surrogate or to advertise to arrange or receive payment for arranging or offering to arrange the services of a surrogate. The Act does not apply to any commercial arrangements made before the Act came into force in 2004.
  

• Section 6(4) Assisted Human Reproduction (AHR) Act 2004 –prevents the use of a female under the age of 21 to be a surrogate mother.
  

• Section 12 Assisted Human Reproduction (AHR) Act 2004  - (not currently in force and still under consultation) will enable a surrogate to be paid their reasonable receipted expenses which is intended to include expenses such as maternity clothes, pre-natal vitamins and fertility drugs, travel etc. However it is much harder to recover expenses for the loss of work related income during pregnancy. This requires certification from a medical practitioner that the surrogate could not work during pregnancy because it would have posed a risk to her health or that of the foetus. In addition reimbursement can only be made in accordance with a licence (this would suggest only AHR Clinics would be able to reimburse this type of expenditure).

• 2004 – The Assisted Human Reproduction (AHR) Act preserved the right for donations to be anonymous but does require detailed records of the donor to be kept. Donors then have the option to reveal their identity if they choose. However, individuals undergoing treatment using donated sperm or eggs must be provided with non-identifying health information on the donor.
  

• Section 9 Assisted Human Reproduction (AHR) Act 2004 –makes it illegal to obtain third party sperm (or eggs) from a person under the age of 18. If the sperm of egg is to be used by the donor then the 18year age limit does not apply.
  

• Section 7 Assisted Human Reproduction (AHR) Act 2004 –prevents payment to a donor for the sale of their sperm or eggs. It is also illegal to advertise for the purchase of sperm or eggs.
  

• Section 12 Assisted Human Reproduction (AHR) Act 2004  - ( not currently in force and still under consultation) will enable a donor to be paid their receipted expenses for acting as a donor. However, AHR clinics in the interim can still reimburse donors for their expenses this is in recognition of the fact that section 12 may take some time to be passed.

• 2004 - Assisted Human Reproduction (AHR) Act  provides the first comprehensive law on human reproduction and the aim is to promote an altruistic system which has the health and well-being of the child as the primary concern and seeks to promote free and informed consent. The Act came into force on 22^nd April 2004 (although some provisions are not fully in force). It prevents human cloning, genetic alteration and sex selection. It aims to prevent the commercialisation of reproduction. Under the Act counselling services are to be made available. Human cloning is banned as is genetic alteration or sex selection. In addition no embryo can be kept outside the body of a female after its 14^th day of development.
  

• 2006 - the Assisted Human Reproduction Canada (AHRC) which was set up to administer and enforced  the law on Assisted Human Reproduction.
  

• 2007 – Section 8 of the 2004 Act becomes law. Under this section no human reproductive material can be used to create an embryo without the written consent of the actual donor.

No. In the UK it is illegal to advertise for or to be a surrogate. The law does not however extend to websites abroad (although if you are based in the UK you may still fall foul of the law). Individuals or agencies can act on a non-commercial basis to facilitate a surrogacy arrangement for another person but not on a commercial (profit making) basis.

• Will I be paid for acting as a surrogate?

In the UK it is illegal to pay for a surrogate. However a surrogate can be paid their ‘reasonable expenses’.

• How much are a surrogate mother’s expenses?

There is no figure set down in law. However the expenses should be no more than ‘reasonable expenses’. They will usually include everything that a surrogate mother will have to pay whilst she is pregnant (e.g. maternity clothing, vitamins, hospital bills, travel, time of work etc).

• Should we use a Solicitor to draw up a legal agreement on surrogacy?

No. Surrogacy contracts or agreements are not legally recognised in this country. This means that any agreement drawn up will not be legally enforceable and the parties can change their minds at any time. However, written agreements can be useful simply to clarify all the parties views and intentions. A Solicitor is not necessarily needed for this. Any agreement should consider issues such as whether the surrogate mother will have any form of contact with the child after handover (e.g. sending photographs) and the views and wishes of the surrogate mother's partner.

• Do we need to use a clinic for insemination of the sperm into the surrogate mother?

No, this can be carried out in the home and it is possible to buy insemination kits. However the benefit of using a clinic is that their will be screening for sexually transmitted diseases and counselling will also be offered.

• I am using partial surrogacy through a clinic. How long can I  freeze/store my eggs for?

• I am a surrogate mother. Am I entitled to maternity leave?

Yes, a surrogate mother has the same entitlement to maternity leave and pay as any other pregnant woman. However, the intended mother will not have the same right to maternity leave once the child is handed over to her. As the child will not have been adopted she will also not be entitled to adoption leave and pay. However she will be entitled to time off for a dependent but this is not as beneficial as maternity leave.

• If we use a surrogate who will be regarded as the legal mother?

When a child is born to a surrogate mother, the surrogate is the legal mother and the husband is the legal father. In order to become the legal mother it will be necessary to apply for a ‘Parental Order’ from the court. The court will want evidence to show that no money other than reasonable expenses were paid and that the parties did not advertise for or to be a surrogate.

• Who will be registered as the parents on the birth certificate?

• How do we apply for a 'Parental Order"?

• We are a gay couple. Can we use a surrogate?

Currently the law on surrogacy only applies to married couples and they can apply for a parental order recognising their parental status after surrogacy. However, the Human Fertilisation and Embryology Bill currently before Parliament will change this so that gay and single people can apply for parental orders following surrogacy.

Set out below are some of the major changes which will be made to the law in this area:-

• Certain types of embryos which contain both human and animal DNA (known as “human admixed embryos”) will be permitted for medical research but a licence is needed to create such embryos.

• Increases the maximum storage time for embryos to a ten year limit (without any conditions). This brings it into line with the storage of donated eggs and sperm.

• Sex selection (selecting embryos to implant on the basis of their sex) is permitted but only for medical reasons and only for conditions which are linked to sex chromosomes such as Duchenne Muscular Dystrophy or where there is a strong family history of breast cancer.

• The Bill will remove any doubt about whether fertility treatment can be offered to same sex couples and single women. The new law will  allow lesbians and single women to receive treatment.

• The current law requires that when offering fertility treatment clinics should give consideration to “the need of that child for a father”. The Bill changes this emphasise to considering the child’s need for “supportive parents”.

• Any woman receiving treatment must be given a suitable opportunity to receive counselling as must her partner and this must be offered before treatment and they must also be given relevant information which must include (in the case of couples using donated eggs or sperm) the importance of informing any child born that they were donor conceived and doing this at the earliest opportunity. The information will give details of ways to inform the child.

• Under the current law a couple seeking treatment must consent to the storage of embryos or use of donated sperm or eggs. The Bill introduces a “cooling off period” where one of the parties (e.g. partner or donor) withdraws their consent. The embryo will continue to be stored and will not be destroyed for a year. This allows the parties to try to reach a private resolution to the conflict. This cooling off period willalso to apply to single women seeking fertility treatment where the donor withdraws consent.

• Under the new law in order for a man to be regarded as the father at the time the woman is artificially inseminated, the couple must have given notices of consent to the clinic to him being treated as the father and neither must have withdrawn their consent and the woman must not have served a cross notice consenting to another man being named as the father. However after transfer of the embryo neither the man nor the woman can withdraw consent. However if the woman does not conceive and a new cycle of treatment begins consent can be withdrawn to the man being treated as the father for the new cycle.

• The law will be changed so that where a female who is in a civil partnership gives birth to a child by assisted reproduction (anywhere in the world) and using a clinic, she will be the mother of the child and her partner will be regarded as the other parent (unless she did not consent to the treatment). The partner will also automatically have parental responsibility. For same sex females who are not in a civil partnership the other partner will be regarded as the parent if treatment was in a UK licensed clinic and the couple signed notices of consent to the other partner being treated as a parent (before transfer of the embryo). However the other partner will need to obtain parental responsibility by either being named on the birth certificate, entering into a signed parental agreement with her partner or applying for a court order.

• Civil partners, unmarried couples and same sex couples who are not in a civil partnership will under the new law be able to apply to the court for a parental order formally recognising them as the legal parents. At present only married couples can apply.

• Under the current law a donor conceived person can apply for information about the identity of the donor. The Bill will allow this information to be requested from the age of 16 instead of 18. However this only applies to non-identifying information (e.g. sex of the donor, hair colour etc) Any identifying information can only be obtained from age 18.

• A donor conceived person will also be allowed to apply for information about the number, sex and year of birth of any half siblings also conceived using donated eggs or sperm. This information can be obtained from age 16.

• A donor conceived person will also be allowed to find out whether they are related to someone they propose to marry, enter a civil partnership or a relationship with. However their partner will also need to give consent to the release of this information. There is no age limit connected to requesting this information.

• The Human Fertilisation and Embryology Authority (HFEA) will be given new powers to inform a donor that a donor-conceived person has requested information about him/her.

• Donors themselves will now be allowed to request information about the number, sex and year of birth of children born as a result of their donated sperm/eggs.

1978                
The first IVF baby, Louise Brown, was born in Bristol at the Oldham and District General Hospital in 1978 but it was some 12 years before any proper regulation of this new field of human reproduction was put in place.

1990            
The Human Fertilisation and Embryology Act was passed to regulate the creation, keeping and use of embryos outside the human body as well as the storage of eggs and sperm for assisted reproduction.

1991           
Human Fertilisation and Embryology Authority (HFEA) was established in 1991 to regulate the creation of embryos outside the human body and the storage or use of embryos, eggs and sperm.

1994            
Legislation in the form of the Parental Orders (Human Fertilisation and Embryology) Regulations 1994 allowed 'parental orders' to be made for the non-carrying partner in egg or sperm implantation so they would be regarded as the legitimate father of the child.

2001            
Legislation was passed to allow the creation of 'cloned' embryos for stem cell derivation.

2003            
Legislation (the Human Fertilisation and Embryology (Deceased Fathers) Act 2003) allowed deceased fathers of a child conceived after his death (but using sperm donated before his death) to be registered on the child's birth certificate. This was as a result of a long campaign by Diane Blood.  The father’s consent for his sperm to be used must have been given in writing before his death. The registration also does not give the child any legal status or rights against the father or his estate.

2004            
Legislation in the form of  the Human Fertilisation and Embryology Authority (Disclosure of Donor Information) Regulations 2004 allowed a child born by donated sperm eggs or embryos to obtain certain information about the donor. The information that the child is entitled to as of right is information about the donor's sex, height, weight, ethnic group (including the donors parents ethnic group), whether the donor was adopted, eye colour, hair colour, skin colour, religion, occupation, interests and skills and why they decided to become a donor, their year of birth, country of birth, marital status and the sex and number of any children that the donor has. The child is entitled to this information when they reach 18. From April 2005 any information which donors supply about their actual identity can also be disclosed if specifically requested by the child and this includes the donors name, date of birth and address.

2007            
The EU Tissue Directive led to the Human Fertilisation and Embryology (Quality and Safety) Regulations 2007 which provided that licences must also be obtained for non-medical fertility services. This was directed at internet based businesses that arrange for donated sperm to be delivered to women at home for self-insemination. 

LATEST PROPOSALS

The Government has recently published a draft Human Tissue and Embryology Bill (May 2007) [which will soon become law The proposed amendments to the law include, a ban on sex selection of children for non-medical reasons, extend legal parental status to civil partners and other same sex couples where a child is born by assisted reproduction. At present the law requires clinics before treatment to consider the welfare of the child and “the need of that child for a father” as well as considering any other child who might be affected by the birth. The draft bill proposes removing the reference to 'need of that child for a father' and to replace it with “need for a supporting parent”. Both partners must also consent in writing to the non-carrying partner being treated as the father (or parent in the case of same sex couples) and this must be done before a donated egg or sperm can be transferred to the woman.

Women must be given counselling before starting any treatment and the draft bill intends to extend this to same sex couples as well as any couples deciding on consenting in writing to legal parenthood being given to the non-carrying partner.

The Bill is currently in its final stages before Parliament.

a) Adoption agencies in relation to a person's adoption.

b) Information that adoption agencies must disclose to adopted adults on request. ('Protected information')

c) Information that courts must release to adopted adults on request.

d) Information that adoption agencies may release to adopted adults, birth parents and others.

However, these provisions will only apply to adoptions that take place after the Act was implemented.

An adopted adult can apply to the appropriate adoption agency for 'protected information' about a person involved in an adoption, such as the adopted person, his birth parents or the adoption social worker.

'Protected information' is defined as any identifying information sought by someone other than the person it is about. It would include names, residential, educational and employment addresses, case records, legal and medical information as well as photographs and audio-visual material. It also includes any information held by an adoption agency which, was obtained by the Register General or any other information that would enable an adopted person to obtain a certified copy of his birth record or any information about an entry in the Adoption Contact Register about the adopted person.

Adoption agencies have a discretion to disclose information, which is not 'protected information', to an adult adopter or other persons including the birth parents - e.g. background information about the child's progress.

An adoption agency, which discloses information in contravention of the Act commits a criminal offence and will be liable on conviction to a fine.

The Act also enables the High Court to order, in exceptional circumstances, that an adoption agency withhold information which might otherwise enable the adopted adult to obtain a certified copy of his/her birth record.

The adoption agency is to become the single point of access to identifying information as it is believed that they are the bodies best placed to provide the support and counselling needed.

For adoptions that took place before the Act came into force, provisions are made to allow the Secretary of State to introduce measures which would allow adoption support agencies to provide intermediary services to assist adopted adults to obtain information about their adoption and facilitate contact between them and their birth relatives.

Adoption Register

The Adopted Children Register is to be a register of adoptions taking place in England & Wales and will be kept in the General Register Office, but the Register itself is not open to public inspection or search. However, the index of the Register is available for inspection and anyone can apply on payment of a fee for a certified copy of an entry in the register relating to a child who has reached 18.

An adopted person can apply to obtain a copy of their birth certificate but the Local Authority must make the application.

The Adopted Contact Register is also a register to be kept at the General register office and again the register itself is not available for public inspection and search but it is possible to apply for certified copies of entries in the register.

The register will contain information about adopted persons who have given notice expressing a wish to make contact with their relatives and who have reached 18.

b) Married couples applying jointly.

c) Unmarried couples applying jointly (whether of different sexes or the same sex).

d) A Step-Parent (provided the child has had his/her home with them for at least six months preceding the application).

e) Foster carers (provided the child has had his/her home with them for at least 12 months preceding the application, although they can apply for permission from the court to apply within a shorter period).

f) Lesbian and gay couples.

g) Others not fitting into the above category (e.g. a partner of the child's parent) - the child must have had his/her home with them for at least three years preceding the application.

To be considered as adoptive parents, a "couple" (married or unmarried) would need to prove they have a stable and lasting relationship and that they can provide a loving family environment for a child. There is also a continuing restriction as to age and domicile.

The Adoption and Children Act 2002 received Royal Assent and therefore became law on 7th November 2002. However, the Act finally came into full effect on 30th December 2005.

The Act overhauls and modernises the legal framework for domestic and inter-country (overseas) adoption and in particular  replaces provisions of the outdated Adoption Act 1976.

It also puts adoption law in line with the existing provisions of the Children Act 1989 to ensure the child's welfare is the paramount consideration in all decisions relating to adoption.

There is now a duty placed on local authorities to maintain an adoption service and provide adoption support services.

The Act also  provides for adoption orders to be made in favour of single people, married couples and unmarried couples.

It introduces a new independent review mechanism for prospective adopters who feel they have been turned down unfairly and provides a new system for accessing  information held in adoption agency records or by the Register General about any adoptions which take place after the Act came into force.

It also established an Adoption and Children Act Register to suggest links between children and approved adopters.

As far as overseas adoption is concerned the Act  provides additional restrictions on bringing a child into the UK for adoption and sets out  restrictions on arranging adoptions and advertising children for adoption.

It also brought in new court rules governing the making of adoption orders and measures requiring the courts to draw up timetables for adoption cases to be heard. Freeing orders are now replaced for "placement orders".

The Act went beyond just adoption issues and gave the unmarried father for the first time the right to acquire parental responsibility for his natural child where he and the child's mother register the birth of their child together. It also  introduced arrangements for step-fathers to acquire parental responsibility.

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If the application is made by a couple (whether married or unmarried), both of them must have been habitually resident in the British Isles for at least one year preceding the application or one of them must have been domiciled in a part of the British Isles.

If the adoption is through an adoption agency, the adoption application cannot be lodged until the child has been with the applicants for at least 10 weeks.

Either the permission of the birth parents (or if this is not forthcoming) then a "placement order" from the court which would authorise the local authority to place the child with adopters they have selected.

Challenging Decisions of Adoption Agencies

The Act provides for the establishment of a review procedure in respect of decisions made by adoption agencies regarding adoption. A person in respect of whom a decision has been made regarding adoption will be able to apply to a review panel for a review of the decision. The intention is to give the prospective adopters a right to request a referral to a panel run by an independent organisation where an adoption panel indicates that it is minded to turn down their application to adopt.

It is also intended that this independent review mechanism will also be used to review decisions made by adoption agencies concerning the disclosure of protected information held by the agency, where the Agency has a discretion under the Act as to whether to disclose such information.

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1. A prospective adopter must have applied to a local authority or accredited adoption agency for assessment of his/her suitability to be an adoptive parent.

2. The authority or accredited adoption agency must then provide a report approving the prospective adopter as suitable to be an adoptive parent. The report must set out the family, medical and social background of the applicants and the characteristics of the child to be adopted. This will be sent to the Department for Children, Schools and Families (DCSF) to be processed by their casework team.

3. The DCSF must have notified the prospective adopter in writing that it is prepared to issue a certificate confirming to the authorities in the overseas country that the prospective adopter has been assessed and approved as suitable and that the child will be authorised to reside permanently within the British Isles. This is known as a Certificate of Eligibility and Suitability to Adopt.

The papers will also be certified by a Notary and legalized by the Foreign and Commonwealth Office as this is often required by certain countries.

The DCFS will then forward the papers to the other country’s Embassy in London for the final stage of legalization. The application for adoption can then be sent by the DCFS to the relevant authorities in the country where the adoption is to take place.

4. The state in which the child lives will then normally prepare a report about the child's adoptability, family and social background and whether the child has any needs and whether consent to the adoption has been given freely and whether adoption is in the best interests of the child.

When bringing a child into the country it is necessary to show the child is under 18, unmarried, will be looked after and paid for by the applicants, was adopted legally in the child's country and the adoption took place because the birth parents could not care for the child and was not arranged to get the child into the UK.
The child also has to hold a valid UK entry clearance.

It is an offence to send a child who is a British subject abroad for the purposes of adoption unless the adoption is legitimate and the adopters are not living in the UK and intend to obtain a proper adoption order abroad.

The Adoption and Children Act 2002 allows arrangements to be put in place for the recognition in England and Wales of overseas adoption (known as 'inter-country adoptions'). The UK has recently ratified (put into effect) the 1993 'Hague Convention on the Protection of Children and Co-operation in respect of Inter-Country Adoption' (The Convention). This provides for:

• Establishing safeguards to ensure that inter-country adoptions take place in the best interests of the child.
• Establishing a system of co-operation between countries who have signed the Convention to prevent the abduction, sale or traffic in children.
• To recognise inter-country adoptions in the countries who have signed the Convention (see www.hcch.net for a full list of those countries).
• The countries that have signed the Convention must ensure, amongst other things:
• That any child from their country is adoptable.
• Consider whether they should be placed with adoptive parents within their country.
• Consider whether adoption overseas is in the child's best interests.
• Ensure that any consent by the natural parents has been given freely and that they understand the effect of their consent.
• Ensure that no payment has been made to obtain the consent and that the mother has given consent after the birth of the child.

The authorities in the country where the child is to be brought must ensure that the prospective adopters are eligible and suitable to adopt, that they have consented and that the child is authorised to enter and live permanently in that country.

No unsupervised contact is to take place between the prospective adopters and the natural parents until the above requirements have been met. This is to avoid the natural parents being pressurised by the prospective adopters.

It is an offence for parents or prospective adopters to advertise their wish to adopt or for anyone other than an adoption agency to advertise and arrange adoptions. The penalty for this offence is 3 months imprisonment and/or a fine of £5,000.

Those who illegally bring a child into the UK to adopt will face a 12-month prison sentence and/or an unlimited fine.

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England

Intercountry Adoption Casework Team

Department for Children, Schools and Families

Room 11, Lower Ground Floor

Mowden Hall

Staindrop Road

Darlington

DL3 9BG

Tel:                  01325 391 396

Helpline:            01325 391 334

Email:              ica.darlington@DCSF.gsi.gov.uk

Scotland

Scottish Executive

Children and Young People’s Group

Area 2C, Victoria Quay

Edinburgh

EH6 6QQ

Tel:      0131 244 3663/5443

Isle of Man

Isle of Man Adoption Service

3 Albany Lane

Douglas

Isle of Man

IM2 3NS

Tel:      01624 625 161/678 310

Email:            general@mcaws.org.im

Guernsey

States of Guernsey Health and Social Services Homefinding Services

Garden Hill Resource Centre

The Rohais, St Peter Port

Guernsey

GY1 1FB

Tel:      01481 713 230

Jersey

States of Jersey Health and Social Services

Children’s Maison Le Pape

The Parade, St Helier

Jersey

JE2 3PU

Tel:      01534 623 500

Wales

The Welsh Assembly Government

Children’s Health and Social Care Directorate

Cathays Park

Cardiff

CF103NQ

Tel:      029 2082 3668

Northern Ireland

Child Care Policy Directorate

Department for Health

Social Services and Public Safety

D1.4 Castle Buildings

Stormont

Belfast

BT4 3SQ

Tel:      028 9052 2977

Registering Adoptions

General Register Office (GRO)

Trafalgar Road

Southport

PR8 2HH

Tel:                  0151 471 4830

Email:              adoptions@ons.gov.uk

Website:            www.gro.gov.uk

Visas and Immigration

Home Office

Immigration and Nationality Department

Managed Migration, Strategy and Review Directorate

Room 1101 Apollo House

36 Wellesley Road

Croydon

CR9 3RR

UK Visas

89 Albert Embankment

London

SE1 7TP

Tel:                  020 7008 8438

Website:            www.ukvisas.gov.uk

As from April 2007 Statutory Adoption Pay is paid for up to 39 weeks at 90% of the employee's average weekly earnings and then the current level of statutory pay, currently £117.18 per week.

Leave and pay can start 14 days before the expected date of placement for UK adoptions. For overseas adoption it cannot start before the child has entered Britain and no later than 28 days after.

The provisions apply to both married couples and single people who adopt and applies to placements for children up to 18 years old.

In the case of a married couple, only one of them will be entitled to take the leave and receive adoption pay. However, the other will be entitled to the two weeks paternity leave (if they qualify) and statutory paternity pay.

Adoption leave and pay does not apply to stepfamily adoptions. In the case of a foster carer they will only qualify if they go on to adopt the child and the child was placed with them by an adoption agency. Foster carers also have a right to request flexible working to care for a child under six or a disabled child under 18

The employee must have completed a qualifying period of employment. This is at least 26 weeks by the week in which the approved match with the child is made. They must comply with notification requirements and have average weekly earnings equal to or above the lower earnings limit applying to National Insurance Contributions.

Like maternity leave, an employee can vary the date notified for taking Adoption Leave. Employees who want to return to work earlier or later than agreed must give 8 weeks notice (unless the employer is willing to accept less notice).

From April 2007 an employee can also work for up to 10 days during adoption leave under the "stay in touch" provisions, without losing the right to adoption pay.

An employee has the right to return to the same job following Ordinary Adoption Leave and is protected from unfair dismissal related to adoption leave.

Employers can reclaim Statutory Adoption Pay in the same way as for Statutory Maternity Pay.

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This means either a Local Authority or a registered Adoption Society. It does not include adoption agencies abroad.

How do the Courts Ensure the Child's Welfare is Paramount?

The Act provides a welfare checklist which must be applied by the court and adoption agencies which includes:

a) The child's wishes and feelings (having regard to his age and understanding).

b) The child's particular needs (e.g. physical or educational).

c) The effect ceasing to be a member of the original family will have on the child.

d) The child's characteristics, such as age, sex and background.

e) The harm or risk of harm to the child. (This includes any impairment to the child's health or development as a result of witnessing the ill treatment of another person).

f) The relationship of the child with relatives and "other relevant people" (e.g. the benefits to the child of the relationship continuing, the ability of the relatives to provide the child with a secure home).

A court may only make an adoption order where it considers that it would be better for a child than making no order.

Who Can Apply For an Adoption Order Under the Act?

a) Single people.

b) Married couples applying jointly.

c) Unmarried couples applying jointly (whether of different sexes or the same sex).

d) A Step-Parent (provided the child has had his/her home with them for at least six months preceding the application).

e) Foster carers (provided the child has had his/her home with them for at least 12 months preceding the application, although they can apply for permission from the court to apply within a shorter period).

f) Lesbian and gay couples.

g) Others not fitting into the above category (e.g. a partner of the child's parent) - the child must have had his/her home with them for at least three years preceding the application.

To be considered as adoptive parents, a "couple" (married or unmarried) would need to prove they have a stable and lasting relationship and that they can provide a loving family environment for a child. There is also a continuing restriction as to age and domicile.

Are There Any Conditions Attached to an Adoption Agency Placing a Child for Adoption?

If the application is made by a couple (whether married or unmarried), both of them must have been habitually resident in the British Isles for at least one year preceding the application or one of them must have been domiciled in a part of the British Isles.

If the adoption is through an adoption agency, the adoption application cannot be lodged until the child has been with the applicants for at least 10 weeks.

Either the permission of the birth parents (or if this is not forthcoming) then a "placement order" from the court which would authorise the local authority to place the child with adopters they have selected.

Can an Adoption Agency's Decision not to Place a Child for Adoption be Challenged by the Applicants?

The Act provides for the establishment of a review procedure in respect of decisions made by adoption agencies regarding adoption. A person in respect of whom a decision has been made regarding adoption will be able to apply to a review panel for a review of the decision. The intention is to give the prospective adopters a right to request a referral to a panel run by an independent organisation where an adoption panel indicates that it is minded to turn down their application to adopt.

It is also intended that this independent review mechanism will also be used to review decisions made by adoption agencies concerning the disclosure of protected information held by the agency, where the Agency has a discretion under the Act as to whether to disclose such information.

What Mechanisms are in Place Under the 2002 Act for Adopted Adults, Birth Parents and Others to Obtain Information About the Adoption?

The Act introduces new provisions regarding the information that must be kept by:

a) Adoption agencies in relation to a person's adoption.

b) Information that adoption agencies must disclose to adopted adults on request. ('Protected information')

c) Information that courts must release to adopted adults on request.

d) Information that adoption agencies may release to adopted adults, birth parents and others.

However, these provisions will only apply to adoptions that take place after the Act was implemented.

An adopted adult can apply to the appropriate adoption agency for 'protected information' about a person involved in an adoption, such as the adopted person, his birth parents or the adoption social worker.

'Protected information' is defined as any identifying information sought by someone other than the person it is about. It would include names, residential, educational and employment addresses, case records, legal and medical information as well as photographs and audio-visual material. It also includes any information held by an adoption agency which, was obtained by the Register General or any other information that would enable an adopted person to obtain a certified copy of his birth record or any information about an entry in the Adoption Contact Register about the adopted person.

Adoption agencies have a discretion to disclose information, which is not 'protected information', to an adult adopter or other persons including the birth parents - e.g. background information about the child's progress.

An adoption agency, which discloses information in contravention of the Act commits a criminal offence and will be liable on conviction to a fine.

The Act also enables the High Court to order, in exceptional circumstances, that an adoption agency withhold information which might otherwise enable the adopted adult to obtain a certified copy of his/her birth record.

The adoption agency is to become the single point of access to identifying information as it is believed that they are the bodies best placed to provide the support and counselling needed.

For adoptions that took place before the Act came into force, provisions are made to allow the Secretary of State to introduce measures which would allow adoption support agencies to provide intermediary services to assist adopted adults to obtain information about their adoption and facilitate contact between them and their birth relatives.

What Is A Placement Order?

This is a court order authorising a Local authority to place a child for adoption with prospective adopters where the child is in care or likely to be taken into care, or has no parent or guardian. If there is a parent or guardian of the child they must have consented to the child being placed for adoption, unless the court is satisfied that their consent should be dispensed with because it would be in the welfare of the child to do so.

Placement orders can be revoked on the application of any person, but if that person is not a local authority or the child themselves, the permission of the court is required to make the application and the child must not have been placed for adoption by the local authority.

Once a Placement Order is made parental responsibility for that child will pass to the local authority until the child is placed with the prospective adopters at which time parental responsibility will pass to them.

Any parent or guardian or relative who wishes to have contact to the child can only do so by applying for a contact order under the Act.

What Are The Adopted Children Register And The Adoption Contact Register?

The Adopted Children Register is to be a register of adoptions taking place in England & Wales and will be kept in the General Register Office, but the Register itself is not open to public inspection or search. However, the index of the Register is available for inspection and anyone can apply on payment of a fee for a certified copy of an entry in the register relating to a child who has reached 18.

An adopted person can apply to obtain a copy of their birth certificate but the Local Authority must make the application.

The Adopted Contact Register is also a register to be kept at the General register office and again the register itself is not available for public inspection and search but it is possible to apply for certified copies of entries in the register.

The register will contain information about adopted persons who have given notice expressing a wish to make contact with their relatives and who have reached 18.

What Are The New Provisions On Overseas Adoption?

The Act allows arrangements to be put in place for the recognition in England and Wales of overseas adoption (known as 'inter-country adoptions'). The UK has recently ratified (put into effect) the 1993 'Hague Convention on the Protection of Children and Co-operation in respect of Inter-Country Adoption' (The Convention). This provides for:

Establishing safeguards to ensure that inter-country adoptions take place in the best interests of the child.

Establishing a system of co-operation between countries who have signed the Convention to prevent the abduction, sale or traffic in children.

To recognise inter-country adoptions in the countries who have signed the Convention (see www.hcch.net for a full list of those countries).

The countries that have signed the Convention must ensure, amongst other things:

That any child from their country is adoptable.

Consider whether they should be placed with adoptive parents within their country.

Consider whether adoption overseas is in the child's best interests.

Ensure that any consent by the natural parents has been given freely and that they understand the effect of their consent.

Ensure that no payment has been made to obtain the consent and that the mother has given consent after the birth of the child.

The authorities in the country where the child is to be brought must ensure that the prospective adopters are eligible and suitable to adopt, that they have consented and that the child is authorised to enter and live permanently in that country.

No unsupervised contact is to take place between the prospective adopters and the natural parents until the above requirements have been met. This is to avoid the natural parents being pressurised by the prospective adopters.

To apply for an overseas adoption, applicants must first apply to the central authority in the State in which they reside who will decide if they are eligible and suitable to adopt (This is the Department for education and skills in the UK. See www.dfes.gov.uk). The central authority will then prepare a report for the State where the child resides which will set out the family, medical and social background of the applicants and their ability to undertake an inter-country adoption. The report will also set out the characteristics of the type of child the applicants could care for (in the UK this report will usually be undertaken by a Local Authority or an accredited adoption society).

The State in which the child resides must then prepare a report about:

The child's adoptability

Family and social background of the child

Whether the child has any special needs

Whether any consent to adoption has been given freely and

Whether the adoption is in the best interests of the child.

Once these requirements are satisfied a child can be transferred to the State where the prospective adopters reside to allow the legal adoption process to take place. In the UK the adoption must then be registered at the Office of the Registrar General for England and Wales. An application can be made for the child to receive citizenship from the date of adoption.

It is an offence for parents or prospective adopters to advertise their wish to adopt or for anyone other than an adoption agency to advertise and arrange adoptions. The penalty for this offence is 3 months imprisonment and/or a fine of £5,000.

Those who illegally bring a child into the UK to adopt will face a 12-month prison sentence and/or an unlimited fine.

What Is A Special Guardianship?

This is a guardian who has been appointed by the court in adoption proceedings or in any family proceedings where a question arises with respect to the welfare of the child. The Special Guardian then acquires parental responsibility for the child and can usually exercise parental responsibility to the exclusion of any other person with parental responsibility, (apart from another Special Guardian).

A Special Guardian must be over 18 and must not be the parent of the child.

Those who can apply to be Special Guardians are:

a) Any guardian of the child

b) A person in whose favour a residence order has been made

c) A local authority foster parent with whom the child has lived for at least one year

d) Any person who the child has lived with for at least 3 years

e) Any person who has the consent of someone with a residence order or parental responsibility for the child, or a local authority (if a care order has been made) to apply.

What Support Services Must Local Authorities Provide?

All Local Authorities must provide as a minimum, the following adoption services:

a) Counselling, advice and information

b) Financial support

c) Support groups for adoptive families

d) Assistance with contact arrangements between adopted children and their birth relatives

e) Therapeutic services for adopted children

f) Help to ensure the continuance of adoptive relationships

g) Provision of an adoptive support services advisor and adoption support plans for adoptive families

h) Providing an assessment of the needs of adopted children and their families for adoption support services.

What Are The Changes That The Act Makes To The Children Act 1989?

1. A father who is registered on a child's birth certificate will acquire parental responsibility. (This only applies to births registered on or after 1st December 2003).

2. A step-parent can acquire parental responsibility if both the natural parents enter into an agreement with the step-parent to give the step-parent parental responsibility or if the court makes an order on the step-parent applying for parental responsibility.

3. The restriction on foster parents making applications for residence, contact parental responsibility orders etc unless the child has been with them for 3 years has now been reduced to one year.

4. The meaning of "harm" for the purposes of care and supervision orders has now been extended to include the child suffering impairment due to 'seeing or hearing the ill-treatment of another' (e.g. domestic violence involving the parents).

5. Residence orders made in favour of any person who is not a parent or guardian of the child can continue in force until the child reaches eighteen.

INFORMATION PROVIDED COURTESY OF COMPACTLAW LTD www.compactlaw.co.uk
 

For example Britain, Spain, Belgium and Canada permit embryo freezing, egg donation and embryo screening whilst Germany and Italy do not. However the UK has a long waiting list and the numbers of egg and sperm donors has dropped due to a law which no longer protects their identity and due to the fact they can only be paid a maximum of £250 for expenses and lost earnings.

Choosing the right country to have IVF treatment can be a minefield because of the differences in the levels of service clinics are able to offer.

Differences in Regulation

Britain

• Clinics must be licensed by the HFEA.
• Allows embryo freezing, egg and sperm donation and embryo screening for inherited diseases. UK has recently approved the use of hybid embryos for medical research.
• Maximum of two embryos created can be implanted in women under 40 with an absolute maximum of three embryos. UK likely to move to single embryo system.
• No anonymity for donors.
• Will soon allow treatment for lesbians and single women as well as married women.
• Treatment available on NHS but usually only one cycle.

Belgium

• No special regulation, relies on doctors codes of conduct.
• Allows embryo freezing, egg and sperm donation and embryo screening (for therapeutic purposes only).
• Maximum of two embryos created can be implanted where appropriate (but only one embryo for first two cycles).
• Anonymity of donors allowed.
• Allows treatment for lesbians and single women as well as married women.
• Since 2003 patients entitled to up to six cycles of IVF free of charge.

Denmark

• Strict regulation.
• Allows embryo freezing, egg and sperm donation and embryo screening for serious inherited diseases.
• Maximum of two embryos created can be implanted where appropriate.
• Treatment only available to married women or those living with a common law husband.

Germany

• Strict regulation which only allows fertilisation of eggs and creation of pregnancy in the same woman.
• Bans embryo freezing, egg donation and embryo screening for inherited diseases but allows sperm donation.
• Every embryo created must be implanted.
• Treatment limited to married women.

Italy

• Since 2004 it has one of the strictest regulations in Europe.
• Bans embryo freezing, egg and sperm donation and embryo screening for inherited diseases.
• Every embryo created must be implanted and no more than three can be fertilised.
• Treatment limited to married women.

Sweden

• Regulated but no private clinics, IVF must be done through University Hospitals.
• Allows embryo freezing, egg and sperm donation and embryo screening for serious inherited diseases.
• Maximum of two embryos created can be implanted in exceptional circumstances.
• Egg sharing not permitted.
• No anonymity for donors.
• Allows treatment for lesbians and single women as well as married women.

Canada

• Regulated by AHRC
• Allows egg and sperm donation and embryo research under strict regulations.
•  Sperm and eggs to be used to create embryos can only be used with the donor's written consent.
• Donor anonymity allowed but no payments can be made to donors other than reasonable expenses.
• Allows treatment for lesbian and single women as well as married women.

These are examples of just some of the disparities across countries. No wonder there is a growing trade in IVF tourism.

When deciding whether to travel abroad for treatment we need to consider how far clinics are regulated in the country of choice. European countries who are members of the EU or EEA have common standards of quality and safety as a result of the passing of the EU Tissues and Cells Directive which in particular governs the storage and deportation of sperm.