Fertility law and parenthood following assisted reproduction

Fertility Law is at the cutting edge of legal practice as increasing numbers of families embark on alternative ways of having children. In addition to surrogacy, families are seeking to use donor gametes (either sperm or eggs) and frozen embryos or seeking co-parents.

The Human Fertilisation and Embryology Act 2008 introduced important changes both in surrogacy law and in relation to who the law recognises as a ‘parent of a child’. The Act enables civil partners or couples who are neither, married or civil partners, whether same sex or heterosexual, to become a child’s legal parent even though they are not biologically related to that child. It is important that the strict requirements of the Act are met before legal parenthood can be acquired by a non-biological parent and there are differing requirements depending upon whether a couple are married, civil partners, or not.

Anest represented one of the Applicants A & Ors (Human Fertilisation And Embryology Act 2008) [2015] EWHC 2602 (Fam) (11 September 2015). In this case the President of the Family Division was asked to grant declarations of parentage where couples had received fertility treatment using donor sperm at clinics licensed by the HFEA. Audits revealed anomalies in the records held at the clinics. Patients received letters advising them that they considered the partner, who had been registered as the parent of the child, not to be the legal parent of their child. The patients were advised that their partner would need to adopt their child. Anest advised her clients to apply for a declaration of parentage, this was subsequently granted in that specific case. As a result of this case the HFEA indicated that they “will review the action we have already taken, alongside the Judge’s recommendations, to minimise the risk of this happening again.”

Anest also represented Mr H in the leading case of Re M [2013] EWHC 1910 (Fam) in which a “sperm donor” who provided sperm through natural insemination was held to be the legal father of the child. The case confirmed that if the requirements for conferring legal parenthood are not met and the child is conceived through informal artificial insemination then the common law principles apply and the donor will be the legal parent. In the case of married couples (and by inference civil partners) it is possible for legal parenthood to be changed through artificial insemination which is not provided as part of licensed treatment. The case defined the consent to be provided by the husband/ civil partner for the purposes of conferring parenthood under the Human Fertilisation and Embryology Act 2008.
We are able to provide legal advice to intended co-parents, including providing advice about parental responsibility, and issues for consideration in any co-parenting agreements.

An issue which the Courts are increasingly asked to determine is the child’s relationship with the person who is not the legal parent, (either because the requirements for conferring legal parenthood were not met or because the biological parent is not the legal parent). The Court has determined that it is possible for a biological parent who is not a legal parent to apply for permission to apply for contact and likewise a psychological, but not legal parent has been able to apply for permission to apply for an order.

The child’s welfare is always paramount in cases where the Court is asked to determine child arrangements, such as with whom a child should live and with whom a child should spend time with (formerly residence and contact).

How we can help you

Naomi Angell and Anest Mathias can provide:

• Advice to intended birth parents, co-parents or donors on how the law applies and on what legal rights they will acquire on the birth of a baby or by subsequent agreement or court application.
• Advice about parental responsibility.
• Advice and representation of any patient, their partner or their former partner who has received notification from a clinic advising that there are anomalies in the records regarding parentage.
• Representation of any party involved in a dispute over a child’s parentage.
• Advice and representation on family breakdown.

Your next step

If you are considering fertility treatment using donated gametes contact either Naomi or Anest for a confidential chat. After noting specific details of your circumstances they will be able to provide you with further information and options available to you. They will also give you an indication of the process, what will be required of you and the possible time frames involved.

Naomi Angell is ranked as a leading individual in independent legal directories Chambers & Partners and Legal 500. Chambers describes Naomi as “the first person whom applicant adopters should go to ”and as “hugely experienced, calm and a good listener.”