Families and divorce

Coronavirus: Why do I need legal advice for my fertility treatment?

Pregnant woman standing, cradling her baby wearing a yellow top

Updated 29th June 2020 

Returning to fertility treatment

As fertility clinics are re-opening across the country, not only do patients need to be mindful of re-starting treatment, but there may be additional considerations they need to make as a result of the Covid-19 pandemic.

Firstly, you may wish to ensure that your clinic is not charging extortionately for any unnecessary add-ons linked with Covid.  Whilst it is expected that there might be a slight charge for additional PPE equipment, there are concerns that there may be unnecessary charges added on to treatments.  This is already an issue being looked at within the fertility sector but is highlighted as a result of Covid.  Therefore it is worthwhile checking the terms and conditions of business and clarifying with your clinic as to whether anything else is being added.

Many patients are also concerned about the possibility of a second wave causing a further lockdown and therefore it is worthwhile speaking to your clinic about whether they have business contingency plans backed up, such as if another clinic could undertake the treatment if lockdown causes local closures.

Coming into force in June 2020 are Covid regulations which are allowing a two year extension to the storage of gametes and embryos that were already frozen during the Covid-19 pandemic.  Again, it would be prudent to check with your clinic as to any impact Covid may have had on storage issues. 

It is also worthwhile remembering that given the possibility of disruptions to fertility treatment again in the future, to ensure that your employer is aware of the requirement for leave for medical appointments moving ahead.  

Given many patients also had cancelled appointments a few months ago, it is essential to ensure that you rearrange any appointments such as the counselling.  This is because these requirements can have an impact upon your legal standing in the future whether you are legally declared a parent.

If you are utilising a surrogacy arrangement we would suggest that you speak to your relevant clinic as to whether the surrogate and the intended parents can attend at appropriate appointments.  Currently there are restrictions on the number of people in attendance and therefore you may wish to consider this as part of your planning.  

Lastly, given there have been disruptions, again it's essential to ensure all the paperwork has been completed and that you have fully understood the consent forms that you are signing.  The impact of not understanding consent forms can have devastating consequences on a patient's legal position, whether as a parent, or as a donor.  

Fertility treatment can be a stressful time for all involved and therefore it is important to ensure that you are fully aware of your legal position as parents in the future.

Storage of frozen embryos, egg and sperm

As of 27 April 2020, the Department for Health is extending the time limit for frozen embryo, egg and sperm storage by a further two years to 12 years. This is to protect people who may be reaching the end of the original ten year limit and who are prevented from carrying on with treatment due to the current crisis.  

Fertility organisations have been lobbying the government on this point of law for some time so this extension to the time limit is very welcome and it is hoped, may pave the way for future changes in law around the issue of storage.

Other considerations

If you are going through a pregnancy involving a surrogate, there are different interpretations as well as concerns around whether the intended parents can be present for the birth.  The Family Court has put in place systems to facilitate hearings involving parental orders via telephone and video conferencing which is enabling matters to progress in spite of the lockdown.

The current unprecedented situation is adding further complication to an already complex area of law. Our expert fertility law specialists are here to guide you with initial free advice and guidance during this stressful time.

Contact us, so we can help review your situation 

Speaking to a solicitor may be the last thing on your mind when undergoing fertility treatment, however it is becoming increasingly necessary to ensure that you take independent legal advice. Top family law judges recommend that “any person considering fertility treatment should ensure that they are familiar with the legal steps around the treatment, given the significant impact it could have both in the short and long term”.

If you are thinking about undergoing fertility treatment, it is important to consider the legal issues. The law can be complex so if you are starting a family, there are some key factors to consider:

Who will be your child’s legal parents? 

How does the nature of the treatment and any donors, or forms completed at the clinic, impact on the legal parenthood?

If you are conceiving at a clinic, it is important to understand how the law governs your fertility treatment and affects your rights to information 

If you are not using an at home conception, does this change how the law looks at the status of any intended parent?

In addition, if you are conceiving with, or as a known donor or co-parent, being aware of how to manage relationships and expectations to avoid problems later on and knowing where you would stand if there was a dispute between you, are also important considerations that are worth taking the time to discuss with a legal expert ahead of time.

Caroline Andrews, family law specialist at Tees has many years’ experience specialising in fertility and surrogacy law and has leading case law experience on the issue of legal parenthood. Here, Caroline outlines the various legal implications that must be considered by all parties when a child is born through fertility treatment.

Should I use a fertility clinic? 

The Human Fertilisation and Embryology Authority (HFEA) regulates all UK licensed fertility clinics.  You must give informed consent to fertility treatment at a UK licensed fertility clinic and this requires a clear understanding of English law and its implications in practice for you, your future child and your donor if you use donor sperm or eggs. 

If you don’t have treatment with a licensed clinic the situation is more complicated. There’s a risk that your donor will be considered a parent by law – with all the rights and responsibilities that brings. 

What are my options if I am separated from my partner but wish to have a baby?

If you are separated from your spouse or civil partner and you intend to artificially conceive a child as a single parent, you should first obtain expert legal advice.  English law states that if you carry the pregnancy then you are your child's legal mother.  Your spouse or civil partner will be the legal second parent of your child for English legal purposes unless it can be shown your spouse did not consent to your treatment and artificial conception.    There will be difficulties with the forms ahead of treatment and presumptions in law after treatment so advice is essential.

What is co-parenting?

Co-parenting is when two people wish to be parents but who are not in a relationship together. This is a rising trend in America and becoming more common here in the UK.

If you carry the pregnancy, you will be your child's legal parent under English law and your co-parent may acquire legal rights and responsibilities for your child which may or may not accord with your wishes and expectations. Therefore in this situation is extremely important to have a legal expert draft a co-parenting agreement, to ensure that the childcare arrangements are established and agreed on from the start. A bespoke co-parenting agreement will also be an important tool if a dispute arises with your co-parent or if there is a change in either of your personal circumstances. 

Will a known male donor have any legal rights in relation to my baby?

Yes, he may do.  Artificial conception with a known donor creates complex legal issues under English law.  Your known donor will be the biological father of your child.   Irrespective of your wishes, he may also acquire legal status in respect of your child, to the detriment of your legal parental autonomy.  He may also acquire unintended financial responsibility for your child.  

If you are considering known donation it is strongly advisable to put in place a known donor agreement before conception. 

Can I seek fertility treatment abroad? 

You may be considering fertility treatment abroad. The HFEA does not regulate the practices of overseas fertility clinics.   You should obtain expert legal advice in your destination country because the law may be different from law in the UK.   There are a number of concerns as to treatment abroad in relation to medical health and legal impact such as immigration issues for any child. 

Can I take time off work for IVF treatment?

There is no specific statutory right to time off work for fertility treatment which can often be time consuming and stressful. However, your employer should treat your medical appointments for IVF treatment like any other medical appointment. Similarly, if you are written off sick by your GP due to the side effects of IVF, your employer should treat your absence as no different to any other sick leave taken not in conjunction with IVF. If you are at a medical appointment or off sick, you must make sure you follow your employer’s usual sick policy requirements. There are specific rules for surrogates in respect of employment rights.  The Tees employment team can advise you fully on your legal employment rights whilst undergoing fertility treatment.

The importance of a well drafted Will 

Whether undergoing fertility treatment or conceiving naturally, any prospective parent should think about having a Will drawn up.  Your Will should appoint legal guardians for your child in the event of your death and appoint trustees to manage your finances on behalf of your child until your child is old enough to manage these assets.  Given the complexities of who is deemed a legal parent, this can impact on who is considered a child under a Will.  Therefore, tailored legal advice for your family is essential to protect them.  

At Tees, our specialist Wills, Tax and Trusts team can help you prepare a carefully-worded Will to ensure that your child’s interests are fully considered.

Whatever your situation, our legal specialists are here to help guide you. We at Tees understand that undergoing fertility treatment can be an emotional time for you not to mention one that involves considerable cost. The approach of our fertility law specialists is highly empathetic having been involved in the fertility sector at many levels , whilst ensuring that you receive clear advice across the full range of family law issues that you might encounter on your journey to parenthood. We offer a fixed fee service at competitive rates and can discuss funding options for court cases if an order of the Court is required. 

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