Tuesday 19 March 2013

The line of succession and LGBT monarchs

Parliament is currently debating the Succession to the Crown Bill.  The proposed law is intended to update rules on succession to the throne of the United Kingdom of Great Britain and Northern Ireland. 

If passed, the Bill will (amongst other things) do away with the delightfully quaint concept of primogeniture, namely that a monarch’s firstborn son becomes King irrespective of whether there is an elder daughter.  It will also repeal the prohibition on a person succeeding to the Crown if he or she marries a Roman Catholic.

But what, pray tell, if a future Queen was a lesbian?  What if her child – born through surrogacy – were included in the line of succession?

These are the issues that blindside me at 3:30am many mornings….


Act of Settlement 1701

And I’m not alone.  Thankfully, some equally perspicacious Peers in the House of Lords raised just these questions during the Bill’s Report Stage last week. 

As matters currently stand, the law governing succession means only an heir to the body is included in the line of succession.  Featuring in the Act of Settlement 1701 and the Acts of Union 1707, that phrase was intended to mean a direct biological descendent of the monarch. 

Lord True, a Conservative Peer, proposed changes to the Bill that would make it crystal clear that an heir to the body could only be the product of a heterosexual marriage.  As the Hansard account of Report Stage shows, Lord True was sufficiently vexed about “emerging legislation for same-sex marriage and the techniques of surrogate childbirth” that he proposed removing a child born to either from the line of succession. 



Elton John
(no relation of Lord Elton)
 
His was not the lone voice in the wilderness:  Lord Elton (tragically not John), a former Conservative minister whose wife is aide to the Queen, supported the proposal.

Said Lord True:

What happens if we have a lesbian queen in a same-sex marriage who conceives using an egg implanted with donor sperm?  The law should be clear, but this is a question that has not been thought through in the Bill.”

He was only assuaged when he received confirmation existing laws meant only a Royal child born to heterosexual parents would be included in the line of succession.


Lord True didn’t go quietly, however, prophesying, “This may seem fanciful or long in the future, but I believe Parliament should reflect on it … I believe the question will inevitably arise.”

Richard I -
A gay man
So what if it does?  Will it really matter if a future King or Queen has a child with his or her same-sex partner / spouse via surrogacy?  Is it the surrogacy point that is the problem?  It must be, because it’s not as if LGBT individuals are unheard of in the Royal lineage.  William II (William Rufus) of England is widely recognised as gay.  He died without issue, but the proposals of Lords True and Elton (not John), if taken to their natural conclusion, would hold his children less entitled to succeed to the throne because of their father’s sexual orientation.  Likewise, on all counts, Richard I (the Lionheart). 

A gay or bisexual man (depicted here
as King James VI / I)

Edward II (he of the apocryphal red-hot poker inserted up his anus) had five children by Isabella of France.  He, too, is thought to have been gay.  Are his children any less entitled to participate in the line of succession by virtue of their parents' wedding having a whiff of lavender about it?  Or is the line of succession saved because he entered into a sham marriage? 

And let’s not forget James I of Great Britain, described alternatively as either gay or bisexual.  He had seven children with the woman who might or might not have been his “beard”, Anne of Denmark.  His sexuality did not end the line of succession. 

None of the nay-saying deals with the elephant in the room, namely that hereditary monarchy is unfair and elitist.  A much more relevant debate would be whether, in a modern and democratic society, anybody should be expected to defer to another simply because of accident of birth.  Given the absurdity of that system enduring, I wonder whether we don’t have better things to worry about than whether a future monarch is born to a gay King or lesbian Queen. 

In the meantime, I’m confident Lords True and Elton (not John) can rest a little easier knowing their concerns about the demise of the monarchy due to the problems visited by same-sex relationships are more “Chicken Licken’” – unwarranted fears the sky is falling - than founded in reality. 

The Succession to the Crown Bill is scheduled for its Third Reading in the House of Lords on 22 April 2013.

Here’s to the happy day when we see our first Queen and her Queen Consort, or King and his King Consort.


Tuesday 12 March 2013

Civil Partnerships - A potted history and bluffers' guide

Earlier today, the Public Bill Committee finished its scrutiny of the English and Welsh Marriage (Same Sex Couples) Bill 2012-13.  That scrutiny involved a line-by-line consideration of the Bill, followed by a report to Parliament.  The Committee approved – without amendment – all eighteen clauses and seven schedules to the Bill.  One additional provision proposed related to making Civil Partnerships available to heterosexual couples.

 

The Bill will now return to the House of Commons for the Report Stage.  There, MPs will have an opportunity to consider further amendments or new provisions that ought to be added.  Report stage is normally followed immediately by debate on the Bill's third reading.

 

There is no set time period between the end of Committee Stage and the start of the Report Stage.  It is estimated that Report Stage should be concluded by the end of May 2013.

 

Given that Civil Partnerships will be with us for some time to come, then, this blog attempts a whistle-stop tour around the formalities for forming and ending a Civil Partnership, and the legal consequences of being in one.  The content is correct at the time of writing, but of course may need revision depending on what happens with the Bill.  Also, the information provided is particular to the English and Welsh situation. 

 


The Civil Partnership Act 2004


Prior to 2004, a same-sex couple might live together, and be entitled to certain (limited) legal recognition of their relationship by virtue of being cohabitants.  However, there was no mechanism equivalent to marriage through which that relationship could be formally recognised.

This changed with the Civil Partnership Act 2004 (CPA).  The CPA introduced recognition for same-sex relationships.  Same-sex couples were able to register their relationship and acquire many of the same rights and obligations that married heterosexual couples have.

The CPA came into force on 5 December 2005, since which date Civil Partnerships have been available to same-sex (but not heterosexual) couples.


Forming a Civil Partnership


The CPA defines a Civil Partnership as a relationship between two people of the same sex, either: 

·                     formed by registration in England and Wales, or
·                     formed overseas and recognised in England and Wales.

The definition makes it plain that a Civil Partnership between a heterosexual couple is not currently possible.

In order to form a Civil Partnership in England and Wales, notice must first be given in the same way as is required for a marriage.  Notice is given at the couple’s local register office.  Notice must be given, and publicly displayed, for at least fifteen days before the Civil Partnership ceremony.  The proposed Civil Partners must have lived in the area in which they wish to give notice for at least seven full days before they will be eligible to give notice.

If the couple plan to hold the Civil Partnership ceremony other than where they live, they should also contact the register office responsible for that area to give notice. 

Once notice has been given, it is valid for up to twelve months.  However, if the couple decide to change the venue for their Civil Partnership, fresh notice must be given.

Both of the proposed Civil Partners must attend the register office in person.  No-one else can go for them, and one cannot go for the both of them. 

The following details must be given for each of the proposed Civil Partners in the notice:

·                    full name;
·                    age (the minimum age for a Civil Partnership in England and Wales is 16, and written consent of parents or guardians may be required for those under 18);
·                    address;
·                    nationality;
·                    current status (that is, whether single, divorced, widowed, etc);
·                    occupation, and
·                    intended venue for the Civil Partnership.

Documentary evidence will be needed to prove name, nationality, age and address.  A current passport or driver’s licence will be sufficient in many cases.  Alternative documents that might be suitable include birth certificates, national ID cards, bank statements and utility bills.  Proposed Civil Partners should check with the Superintendent Registrar in advance to make sure they have the necessary documents. 

So long as the notice requirements have been met, the Civil Partnership is formed on both parties signing a Civil Partnership document.  They must sign this document in the presence of one another, a Civil Partnership Registrar and two witnesses.

It is not currently possible to conduct a Civil Partnership ceremony on religious premises.  However, it is possible to arrange for the Civil Partnership to be blessed subsequently in a religious ceremony.  Whether it is depends on the particular tenets of the religion in question.

Frequently, people change their name when registering a Civil Partnership.  A copy of the Civil Partnership certificate will usually be sufficient proof of the change.


Recognising foreign Civil Partnerships


The CPA includes provisions about recognising here legal partnerships and same-sex marriages from other countries.  Schedule 20 to the CPA includes a list of countries and relationships that will automatically be recognised here as Civil Partnerships.

Even if a foreign relationship is not mentioned in Schedule 20, it will likely be recognised here as a Civil Partnership so long as: 

·                     the relationship is a legally exclusive one (that is, it is not available to those already in another marriage or legally-recognised relationship);
·                     the relationship is of indeterminate duration (that is, it does not end automatically after a defined period), and
·                     the effect of the relationship is that the parties are treated as a couple or as married.

As a general rule, so long as the formalities for a valid same-sex relationship have been observed in the country where the ceremony occurred, and the parties have legal capacity (that is, they are adults and not suffering from a disorder that impairs their ability to make sound decisions), the relationship will be recognised here. 


Civil Partnership Contracts


Civil Partners may decide to enter into an agreement that says how their property, income and other financial resources will be divided if the relationship ends.

The agreement may be reached either before or after the Civil Partnership ceremony.  If before, the document is called a Pre-Civil Partnership Contract (or Agreement).  If after, it is called a Post-Civil Partnership Contract (or Agreement).

Civil Partnership Contracts are treated in exactly the same way as Pre-Nuptial or Post-Nuptial Agreements (between husbands and wives).

In short, a Civil Partnership Contract is not absolutely enforceable.  However, its terms would be taken into account by any court considering what was a fair division of assets, income and financial resources on the breakdown of the Civil Partnership.


The consequences of Civil Partnership


Those in a Civil Partnership enjoy the same rights as those in a marriage.

So, a Civil Partner can acquire parental responsibility for his or her partner’s children by agreement or court order.  Civil Partners are generally treated as married people for the purposes of entitlement to welfare benefits.

If a Civil Partnership breaks down, the partners have the same claims to maintenance, lump sum payments, property transfer orders and pension sharing as husbands and wives enjoy.

Some other areas where Civil Partners enjoy the same rights as married heterosexuals include:

·                    for inheritance tax purposes;
·                    entitlement to claim from a Civil Partner’s estate;
·                    entitlement to the equivalent of a widow’s / widower’s pension from a Civil Partner’s fund;
·                    immigration / nationality considerations;
·                    entitlement to claim in the event of the Civil Partner suffering a fatal accident, and
·                    employment benefits.

Unless specifically stated, it ought to be assumed that Civil Partners’ rights mirror those that spouses have.


Ending Civil Partnerships


The processes for ending a Civil Partnership are virtually identical to those for ending a marriage.  There are only a few key differences:

·                    a Civil Partnership cannot be terminated through nullity on account of wilful non-consummation of the relationship;
·                    whilst a marriage ends with divorce, the corresponding label for Civil Partnership is dissolution;
·                    a Civil Partner may not rely on adultery to prove the irretrievable breakdown of the relationship when seeking a dissolution;
·                    the preliminary nullity or dissolution order is called a Conditional Order (in marriage cases, it is called Decree Nisi);
·                    the final order that ends the Civil Partnership is called a Dissolution Order (in marriage cases, it is called Decree Absolute).

Leaving aside these minor variations, the procedure for obtaining a dissolution is identical to that for obtaining a divorce.  The procedure for obtaining a financial order on dissolution is identical to that for obtaining one on divorce.

Monday 11 March 2013

Surrogacy arrangements: Who pays the piper?

In my native Australia, two women from Queensland are campaigning for surrogacy costs to be subsidised by the Australian taxpayer.

Melissa Delaware, 35, and Jillian Spears, 40, cannot bear children following their respective battles with cancer which required the removal of their uteruses.  They are each trying for a child using a surrogate mother.

The Australian publicly funded universal health care system is called Medicare.  It allows Australian citizens and permanent residents to receive subsidised treatment from medical practitioners, nurse practitioners and allied health professionals.  Medicare covers the lion’s share of the treatment fee, and patients then pay the balance. 

IVF is provided under Medicare, irrespective of the patient’s income, the number of cycles and whose genetic material is used.  However, Medicare does not presently cover any of the expenses incurred by a Commissioning Parent seeking to have a child through surrogacy.

The two women say this is discriminatory and are petitioning the Australian Federal Government to change the regulations.  Mrs Delaware said while babies born through surrogacy were recognised for tax purposes and paid parental leave, any treatment leading to their birth was not recognised by Medicare.

"Any other woman could do this four times for the same money we're spending on just one cycle," said Mrs Delaware.  "A woman without a uterus or the ability to carry a pregnancy for medical reasons is treated less favourably than other women who can."

Figures show a single cycle of IVF in Australia incurred out-of-pocket expenses of between AU$3,400 (£2,350) and AU$4800 (£3,300).  Mrs Delaware expects her costs to reach more than AU$50,000 (£34,400).

On top of these IVF costs, Commissioning Parents using surrogacy also face legal and counselling costs and their surrogate's health, insurance and travel costs.

Mrs Delaware estimated the average cost of legal surrogacy to be around AU$60,000, (£41,200). 

A spokesman for the Federal Health Minister said the Australian Government would consider the matter.

So much for the Australian angle – what about the situation here?  Well, as in Australia, surrogacy in the UK can be costly.  Whilst commercial surrogacy is illegal, it is perfectly proper – and common – for expenses to be paid to the surrogate.  The precise payment made varies, but tends to range from about £7,000 to £15,000.  There is no upper cap on the amount that may be paid, but an English Judge asked to make a Parental Order following a surrogacy arrangement is likely to need some persuading that expenses exceeding £15,000 were reasonable. 

It may appear cheaper to enter into a surrogacy arrangement overseas, but the costs associated with then dealing with some of the complications that such arrangements tend to bring may make this a false economy.  These include:

·                    the child’s nationality, if born abroad to a non-British / EU citizen;

·                    the child’s entry clearance – if not an EU national, he or she will need a visa to enter the UK;

·                    different approaches abroad to the commercialisation of surrogacy – in some countries, payments in addition to expenses are legal and required;

·                    the fact that a surrogacy arrangement might be enforceable abroad but not in the UK, and

·                    differences between countries about who is treated as a surrogate child’s legal parents.

On top of the costs payable to the surrogate, if the surrogacy is performed at a HFEA-licensed clinic, there will be additional fees for the IVF procedure – between £15,000 and £20,000. 

Last, there potentially are the legal fees associated with obtaining a Parental Order, which I considered in a recent blog.

It might be possible for some of the costs associated with the IVF procedure to be met by the NHS.  However, the provision of IVF treatment varies across the country.  It often depends on local policies.  Priority is often given to childless couples.  In many areas Primary Care Trusts (PCT) refuse to fund surrogacy-IVF because the resulting embryo will be implanted in the womb of a surrogate.  Guidance from the National Institute for Health and Clinical Excellence (NICE) states that where the reason for infertility is known, patients should be fast-tracked for NHS-funded IVF treatment.  However, the Guidance goes on to exclude surrogacy from its remit. 

Following a trawl through Google, I’ve not been able to find any private health care insurance that would cover the costs of IVF treatment (although most will fund investigations into the underlying causes behind an inability to become pregnant).

At present, much as in Australia, there is no entitlement to look to the NHS for a contribution to the surrogacy expenses. 

The commercial reality is that many Commissioning Parents here have to save or borrow (either through personal loans or by mortgaging property) to meet both treatment costs and surrogacy expenses.  Another common option is to rely on credit cards.

Should we be more ready here to fund the IVF procedures associated with surrogacy arrangements on the NHS?  There is force behind the line taken by Mesdames Delaware and Spears in Australia, namely that treating women (and the funding of their IVF) unable to carry a child for medical reasons differently is inherently discriminatory. 

To those who have been through the surrogacy experience, I’d love to hear:

·                    who your PCT was, and their attitude towards NHS funding of the IVF, and
·                    what arrangements you had to make to fund the process. 

Adoption agency loses charitable status due to discriminatory policies

A Scottish adoption agency must review its approach to placing children with prospective adopters.  This follows a decision by the Office of the Scottish Charity Regulator (“OSCR”) earlier this month.

The OSCR declared that the agency, St Margaret's Children and Family Care Society in Glasgow, was operating in breach of equality laws.

The OSCR reported that the Agency could not be considered a charity because its policies involved “unlawful discrimination, which causes detriment to the public and to particular groups of people, the effect of which outweighs the other positive effects of the charity’s work."

This is because the Catholic Adoption Agency’s policy required that applicants should “have been married for at least two years”.  The OSCR found this constituted unlawful direct discrimination against same-sex couples.

The OSCR’s Head of Registration said, “We have carefully considered the details of this case, and the legal position is clear - the charity must take steps so that it does not discriminate unlawfully and can pass the charity test.  This case was complex and we discussed matters at great length with the charity's trustees. We hope that the charity will respond positively and take the necessary action so that it remains in the Scottish Charity Register.”

Alistair McBay, National Secular Society Spokesman for Scotland, said he hoped the decision would lead St Margaret’s to change its policies and “put the best interests of children first, as many other Catholic adoption agencies have done, and comply with the law by widening the pool of prospective parents to include same-sex couples."

The Agency must now either change its policy to comply with equality law, or else appeal the OSCR decision.


In England, most Catholic adoption agencies have either changed their policies, or closed, in response to the law requiring them to consider same-sex placements.  Catholic Care, based in Leeds, lost a legal battle over the issue in November 2012.  Catholic Care was found to have failed to show there were weighty and convincing reasons why it should be permitted to discriminate against same-sex prospective adopters.

I wrote recently about the latest piece of research in a growing corpus that overwhelmingly supports the conclusion that same-sex adoptive parents are raising children just as successfully as – and sometimes better than - heterosexual ones. 

So for my part, I can’t bring myself to be too upset at the decisions taken in England and Scotland affecting Catholic adoption agencies.  I’m all for freedom of religion, but all too often this is mistranslated as an entitlement to engage in unlawful behaviour if justified by religious dogma.  If these agencies are unable to function if deprived of an opportunity to discriminate against a particular group of prospective adopters, then they should not be functioning. 

Here’s hoping St Margaret’s will feel able to adapt their approach in much the same way as Scotland’s other (now former) Catholic adoption agency – St Andrew’s in Edinburgh did in 2008.  That agency changed its Constitution in order to consider and accept same-sex couples, and indeed single gay men and women, as prospective adopters.

What do others think?  Can there be any legitimate basis, either on religious or other grounds, for adoption agencies to exclude from consideration a particular class of prospective parents?

Employment Rights for Surrogate Parents

In a recent blog, I wrote about changes to Indian law relating to surrogacy. 

Those changes, said to be justified from a child-protection perspective, positively discriminated against same-sex couples and single Commissioning Parents.

But the evolving legal landscape in India as far as surrogacy is concerned is not all doom and gloom.

On 5 March 2013, the Madras High Court held that a woman who had had a child through surrogacy was entitled to maternity leave.

The mother had had a child through a surrogate mother, with the consent of her husband, after her 20-year-old son was killed in a road accident in 2009.  She applied for maternity leave to look after the new born after the surrogate mother gave birth to a girl baby in February 2011.  She also applied to include the child under the family medical insurance scheme.

Her employer rejected the application, on the ground that there was no provision in the rules for granting leave to those who have a child through surrogacy. 

The High Court in Madras
The Judge, Justice K Chandru said, "Even in the case of adoption, the adoptive mother does not give birth to the child, but yet the necessity of bonding of the mother with the adoptive child has been recognized by the Central government, therefore, the petitioner is entitled for leave.”

"This court does not find anything immoral and unethical about the petitioner having obtained a child through surrogate arrangement," the Judge observed.

He directed the mother’s employer to grant her leave on the same terms applicable to those who had become parents via adoption.  He also directed the employers to add the child to the insurance scheme.    

Before we get too haughty, it is worth bearing in mind that this decision puts Indian Commissioning Parents in a better position than their UK counterparts.

Here, (at present) parents of children born via surrogacy are entitled to few of the employment rights available to many parents.  For example, there is no surrogacy equivalent in the UK to statutory adoption leave.  Many maternity rights are only available to birth mothers. A woman who has a child through a surrogacy arrangement who is not the birth mother will not be entitled to statutory maternity leave or maternity pay.  A father of a child born via surrogacy might just get home under the definition of "ordinary paternity leave", and be able to enjoy as much as two whole weeks off work with his baby.  This only applies if he is recognised as the child's legal father, however, which will not be the case in all situations.  Particularly fortunate fathers of children born via surrogacy might even manage to qualify for additional paternity leave and pay.  It is some very modest consolation that at least the parents of a child born via surrogacy will be eligible to apply for parental leave (unpaid) or request flexible working. 

Fortunately, change is a-coming.  On 25 February 2013, Parliament passed the Children and Families Bill at its second reading in the House of Commons.  The Bill, if enacted, will impact on various aspects of family life.  Relevant for present purposes is that it will give Commissioning Parents statutory employment rights for the first time.  They will be entitled to time off work to attend two antenatal appointments, statutory adoption leave and pay, and flexible shared parental leave and pay.

The Bill will now progress to Committee Stage, where it will be examined in detail.  The Committee will hear evidence from experts and interest groups.  Amendments will be discussed and voted upon.  Every clause in the Bill must be approved, changed or removed.  Once Committee Stage is finished, the Bill returns to the floor of the House of Commons for its report stage, where the amended Bill will be debated and further amendments proposed.

So, it will be a while still before we know whether the protections proposed for Commissioning Parents survive Committee Stage.  Here’s hoping they do, and that those parents get the rights and entitlements many others take for granted.  The progress of the Bill can be followed here.