Fertility law, surrogacy and same sex parenting
Family lawyers are being asked more and more to deal with agreements between adults who wish to become involved in a surrogacy or a donor conception or some far more complex arrangements where perhaps parties who are not civil partners choose to co-parent, a single woman and her best friend, male or female.
This is a very complex area of law and this article attempts to highlight some of the issues to be considered by anyone involved whether they be surrogate mothers, sperm donors or same sex couples planning to have children.
Fertility Law is a phrase that covers various areas of law including same sex parenting, the storage of fertilised embryos and unfertilised sperm and eggs, sometimes referred to as zygotes. Fertility law also concerns those who donate sperm and eggs and who act as or work with surrogates (those who carry and give birth to children for others).
Recent cases in this area of law include X and Y (foreign surrogacy) 2008 and the case of Andy Bathie who had a private arrangement to donate sperm to a lesbian couple but who was subsequently pursued by the Child Support Agency for child support which he had to pay.
Parents Rights
There has been much debate in recent times as to unequal treatment of different types of parents. For example a surrogate parent has no entitlement to maternity leave nor employment protection. The husband of a surrogate however can take paternity leave. Those who are taking on your child further to the surrogacy can have adoption leave but the surrogate mother remains in no mans land. Similarly, when the surrogate child is born there are no automatic rules as to what is put on the child’s birth certificate and there is usually a court case to decide whether the intended mother or mothers, in the same sex relationship, can be put on a child’s birth certificate and assume legal responsibility for the child.
The most recent Human Fertilization and Embryology Act 2008 was intended to update the regulation of assisted reproduction to reflect what is referred to as our “modern society.”
Previous Acts such as the Human Fertilisation and Embryology Act 1990 created the laws to determine the parenthood of children conceived through assisted reproduction. It dealt with in vitro fertilisation (IVF) which was relatively recent and clarified the rights of a parent / mother who carries the child, rather than the biological donator of an egg.
Sperm Donors
The 1990 Act also provided for fathers conceiving with donor sperm, also to gain parental responsibility for their child produced from the donor sperm.
Of most interest to donors was that the 1990 Act also set out that donors would not be held financially or legally responsible for their offspring which in regards to a sperm donor could be many offspring.
The 2008 Act was partly demanded because of the changes in scientific and medical science allowing for the genetic screening of certain diseases which parents may wish to avoid for their children.
The 2008 Act however prohibited selection based on sex for non medical reasons and also set out some new rules for embryo research and storage.
In 2005 donor anonymity was lifted. Many donors, or those considering being a donor, are unaware of this change in regulations. Effectively since 2005 children conceived after that date as a result of sperm or egg donation are entitled to obtain identifying information about their donors upon reaching their majority.
Rights for Same Sex Couples
The 6th April 2009 is an important date as a result of the 2008 Act because the Act extended parenthood rules for the first time to include same sex couples.
The rules are complex but essentially provides rules for same sex parents of children conceived after 6th April 2009 to have automatic recognition as a parent, whether they are in a civil partnership or not, and sets out how to acquire parental responsibility. From 6th April 2009 the non birth mother in a same sex relationship will be treated in most cases as the children’s second legal parent. The rules as regards a child’s second legal parent deal with artificial conception where both parties in a civil partnership consent or where one does not and also conception outside of a civil partnership, at a clinic, abroad or at home in the U.K. There remain situations where non civil partnered same sex couples, who conceive outside the U.K or outside of a clinic, may not qualify for automatic parenthood and may have to resort to adoption or a residence order to secure parental responsibility for their offspring.
Specialist Advice
If you are considering a surrogacy arrangement, if you are considering the conception of a child with a donor or perhaps more importantly if you are a donor or are living with somebody who intends to conceive outside of the usual heterosexual relationship, then you should seek independent legal advice as to what legal protection you need, both perhaps for your own future finances and for the welfare of your child. Some advice now, possibly the preparation of an agreement can save a vast deal of anguish and legal aggravation later.
If you need advice book a telephone appointment with a specialist family lawyer here.
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