It is estimated that over 3.5 million people in the UK experience fertility challenges.
Fortunately, there have been huge developments in technology and modern medicine over the years and now, thanks to assisted conception methods such as IVF and the use of donor eggs and sperm, more and more people are able to create a family with a little bit of help and become parents.
If you or anyone you know are on this journey or thinking of creating a family, it is important to consider the legalities, to ensure you and your new children are protected as your fertility journey progresses.
BTO’s family law team are delighted to have fertility specialists with years of experience in delicately handling a wide range of donor conception and surrogacy cases, and we fully understand the sensitive nature of each case. We also know from personal experience that it can be both an incredibly exciting and a very stressful time so we will be there, by your side, to guide you through the process from start to finish.
The service we offer is bespoke to you needs, and we will communicate in a way that best suits you at a time that works for you. We are with you all the way offering family, employment and succession planning advice. We are proud to offer our Free Fertility Law Advice Service for those at the start of their journey to ask any questions they have about legal parenthood and family building – just send your query to fertilitylaw@bto.co.uk and one of our specialist lawyers will reply within 7 days.
Now let’s explore the assisted methods available and the wide range of legal services we can provide to you at each stage, in a little more detail.
IVF
In Vitro Fertilisation (IVF) is one of several techniques available to help people with fertility problems conceive and is possibly the most well-known method of assisted conception. In Scotland, if you meet the eligibility criteria, you may be offered up to three cycles of IVF.
During IVF, a doctor will remove one or more eggs from the ovaries of the female patient and then fertilise them inside a laboratory with sperm from an intended father or donor. Once successfully fertilised, the embryos are then transferred to the woman, with the hope of a successful pregnancy taking place.
If the procedure is successful, you may be invited to have embryos frozen in order to help to preserve future fertility. It is important to consider what you may wish to happen to the embryos, should you and your partner separate at a later stage or if one of you were to pass away. We can help in either scenario, ensuring that the appropriate consents are discussed in order to ensure that your wishes are met and that they are formalised in a separation agreement or specialist Wills, as may be appropriate.
Donor Conception
Donor conception is the process of creating a baby using donated sperm, eggs or embryos through self-insemination or fertility treatment such as IVF. It can also involve surrogacy too (which we will explore further in our next blog).
Those who formally donate their sperm or eggs are not recognised as the legal parent of any child successfully born as a result of the donation. There are regulations in place to protect all parties involved, but the donation must be done through formal channels. The donor will have had a number of medical checks completed prior to donation and will also be formally registered as being a donor and not the parent of the child.
If you are using donor sperm or eggs from a sperm or egg bank, you will not be able to know the identity of the donor. However, because of a change in law in 2005, all new HFEA-registered donors (i.e. those registered with the Human Fertilisation and Embryology Authority) are potentially identifiable to any conceived children once they reach the age of 18. This makes it extremely important to consider whether you wish to use or donate eggs or sperm, if this is something you are uncomfortable with.
Due to this change in the law, it has become more popular for people to seek known donors. This could be a friend or family member, and often helps intended parents to answer questions that they will have later in life about their donor if they are known to the family. If you are going down this route, it is still very important for a donation to be done within a formal clinic setting, in order to benefit from the legal protections that come with being a donor.
An increasing trend has emerged over recent years of people obtaining known donations through the internet and social media. This can lead to many complications either medically or legally, and so it is important that you seek legal advice if you are doing this or have done this. Get in touch via our Free Fertility Advice Service if you have any questions.
In circumstances where the donor of the egg or sperm is known to the intended parents, it is imperative that all parties involved are clear about each other’s expectations prior to the process commencing. It is recommended that legal advice is sought immediately in order to minimise the chances of disputes arising in the future, particularly when the child is born. A “Pre-Conception Agreement” can assist with this, with all parties discussing and agreeing the arrangements that they intend to enter into.
Becoming “legal parents”
The definition of “mother” can be found in section 33 of the Human Fertilisation and Embryology Act 2008. It states the mother of the child is the woman who is carrying or has carried a child as a result of the placing in her of an embryo (of sperm and eggs) and no other woman, is to be treated as the mother of the child. Therefore, the woman who carried the child in pregnancy is legally the child’s mother, whether she is genetically related to the child or not.
If you are a heterosexual couple and the woman has become pregnant via assisted reproduction (and with use of donor sperm) then the legal father of the child is the mother’s husband or “consenting partner” unless he can establish that he did not consent. These are all legal forms which will be presented to you by the clinic.
If you are a same sex female couple, you can be deemed to be the legal parents of a child conceived via assisted reproduction under the said 2008 Act. If two women are in a civil partnership or marriage at the time of conception, then the woman who has carried the child will be considered the “mother” and her civil partner/spouse will be the other “parent” of the child, unless of course she does not consent to being so.
If the couple are not married but are cohabiting then the female who did not carry the child, can become a legal “parent” by providing her consent in writing at the time of treatment, via the clinic’s consent forms. In either of these scenarios, no man is to be treated as the father of the child.
Being legal parents of the child brings with it certain responsibilities and rights. These are known as parental rights and responsibilities (PRRs) and can be found in the Children (Scotland) Act 1995.
Once the baby has been born, assuming the treatment has been carried out at a licensed clinic and all the necessary consent forms have been correctly completed, the parents should take the paperwork from the clinic to their local registry office to have the birth registered.
No matter where you are in your fertility journey, whether you have already started or are just considering the options available to you, it is very important to be aware of the legal implications that can arise on your journey to parenthood. It is therefore imperative to obtain legal advice as soon as possible. BTO are with you all the way. Please do not hesitate to reach out to our warm, friendly team.
Beverley Addison, Associate: bea@bto.co.uk / 0141 221 8012
