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.
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.
Caroline Andrews, family law specialist here at Tees has many years’ experience specialising in fertility and surrogacy law and has leading case law experience on the issue of legal parenthood, as well as an understanding of fertility-related conditions such as PCOS. In this article, Caroline outlines the various legal implications that must be considered by all parties when a child is born through fertility treatment.
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?
- Should I use a fertility clinic?
- What are my options if I am separated from my partner but wish to have a baby?
- What is co-parenting?
- Will a known male donor have any legal rights in relation to my baby?
- Can I seek fertility treatment abroad?
- Can I take time off work for IVF treatment?
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.
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.
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.
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.
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.
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.
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.
Storage of frozen embryos, egg and sperm
The Department for Health has extended the time limit for frozen embryo, egg and sperm storage for a period of 55 years as long as consent is gained every 10 years. This is to protect people who were finding the previous limit of 10 years was not sufficient.
Fertility organisations had been lobbying the government on this point of law for some time so this extension to the time limit is very welcome.
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. To combat past lockdown measures, the Family Court has put in place systems to facilitate hearings involving parental orders via telephone and video conferencing to enable matters to progress in spite of disruption due to Covid.
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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Chat to the Author, Caroline Andrews
Senior Associate, Families and Divorce, Brentwood officeMeet Caroline
Legal 500 UK 2021
'Caroline Andrews is an exceptional practitioner. She works closely with Louise Margiotta as part of the team and is very approachable. She has an in-depth knowledge of family law and utilises this to ensure the best outcome for her clients'
Ms. D. C.
Caroline Andrews has helped with my divorce and with two separate child arrangement orders. Her advice is easy to understand and she has been a tremendous support to our family during some very tough times. Thank you once again for all that you have done over the years, for me and my kids.