Fertility law

Legal advice may not be the first thing you seek when thinking about embarking on fertility treatment, but it’s a good idea. If you are a same-sex couple, a single parent or are conceiving using a donor, or even considering being a donor, the legal processes can be complicated.

Caroline Andrews, Brentwood

 It’s good to speak to a specialist fertility lawyer on areas such as: consent to treatment, parental rights, freezing your eggs or sperm and preconception agreements. These issues can have a significant impact on the child and intended parents. 

What is a preconception agreement?

A preconception agreement is a document which sets out how the arrangement will work between your known donor, or co-parent, before you conceive. Please note, a preconception agreement cannot be used in cases of surrogacy, where different rules apply. 

Preconception agreements are not legally binding, however they are still worthwhile as they can help you plan out some of the more difficult details of the arrangement such as:

  • Who will the child live with and spend time with
  • Who will have financial responsibility
  • Where will the conception take place, at home or at a clinic
  • Set out any issues such as responsibility for schooling or medical decisions

Who will be the legal parents of the child after fertility treatment?

Under English and Welsh law, a child can only have two legal parents, known as legal parenthood. The individual who gave birth to the child will automatically be the legal parent, regardless of whether they are the biological parent of the child or not. If the individual who gave birth to the child is married or in a civil partnership then their partner will become the other legal parent; unless they do not consent to the treatment that gave rise to the conception. 

If you are not married or in a civil partnership, and you are not the person giving birth to the child, you will need to have signed the correct parenthood forms before the fertility treatment started, in order to become a legal parent of the child.

Intended parents need to bear in mind that the legal arrangements can have a lasting impact with implications for responsibility, even in circumstances of a family breakdown. 

It is important to be aware that parental responsibility is a separate issue from legal parenthood. When undertaking treatment, it is important to consider parental responsibility and how to obtain it. Parental responsibility covers the legal rights, responsibilities and authority a parent has for a child, such as making decisions about their care and upbringing. 

Will I need a co-parenting agreement?

You may choose to enter into fertility treatment with a friend; this is often referred to as ‘known donation’. Often there are many issues that arise with known donation, so it is useful to create a co-parenting agreement to help you discuss and agree upon issues before the child is born. A co-parenting agreement will usually cover issues such as:

  • Who the child will live with
  • Who will have parental responsibility
  • Who will be named on the birth certificate
  • How much contact the child will have with the other parent  
  • Decision making once the child is born e.g. where they will go to school

Consent to treatment and storage and what happens if there is a dispute?

Before any treatment can take place, you must first give your consent to ensure your eggs, sperm and embryos are used in the way you want them to be. You may need to give consent to:

  • How long your eggs, sperm or embryos are stored for
  • What will happen to your eggs, sperm or embryos when you die
  • What will happen to embryos after a separation between the two people concerned 

You are able to withdraw consent at any time until your eggs, sperm or embryos have been used in treatment. 

If you have created embryos and don’t agree on how they should be used, or separate after the embryo has been created, then you will be given one year as a cooling-off period where you can think through all the issues before coming to a final decision.

How can fertility treatment impact employment rights?

Whilst undergoing fertility treatment, you will not be entitled to statutory time off.  However, the Advisory, Conciliation and Arbitration Service (ACAS) guidance states that employers should treat appointments related to IVF in the same way as any other medical appointment, under the terms and conditions of the contract of employment. If the implantation is successful, you will be entitled to maternity leave, as per your employer’s policy. 

Fertility clinic errors

If something has gone wrong during your fertility treatment, Tees’ specialist lawyers can work with both clinics and patients to help review the legal processes that were involved and help reach a solution. There have been a number of cases where ‘legal parenthood’ has been affected as a result of clinic errors.  Fertility law is a complex area; misunderstandings or omissions can have long-term implications that are not always obvious at the time, so it is best to seek specialist legal advice in advance of receiving fertility treatment. Tees can offer specialist advice on obtaining legal parenthood in these circumstances, and also offer general advice on a fixed fee basis to help guide you through the process of fertility treatment.

What to do next

If you need legal advice about adoption, or a related issue, give call us. A dedicated family law solicitor will outline your options and tell you how we can help.

Come in and see us for a FREE 30 minute face-to-face consultation about your options. Alternatively, if you want us to take a closer look at your situation, for a fixed fee of £150 + VAT, we can talk with you for up to 90 minutes.

Call our Family and Divorce Law solicitors on 0800 013 1165

For a free initial chat, at no obligation, or fill out our enquiry form and a solicitor will get in touch.

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