Fertility treatments : Are our laws fit for purpose?

Hollie Orgee, a senior solicitor at the Stowe Family Law office in Birmingham, discusses technology conception fertility treatments and whether our family laws are fit for purpose.

Lockdowns, social restrictions and changes to how we live, coupled with financial, health and employment concerns, have had a dramatic impact on those women looking to start a family.

For single women in their 30s and 40s, the ticking clock of fertility adds further worry. Recent research commissioned by Stowe Family Law found 6 in 10 of the women surveyed were anxious about their chances of having a family due to Covid-19.

Of those, over half are now contemplating technological conception procedures, with the most popular being egg freezing, followed by IVF, sperm donation, and surrogacy.

Technology-assisted methods create wonderful opportunities for people to have a family; however, the law in this area is complex and can be challenging to navigate.

Egg freezing

The current rules around egg freezing and fertility treatment favour younger women, ignoring those who have chosen to start a family later in life.

The rules demand that gametes are destroyed after ten years (unless a medical reason can be shown for an extension). A limit that ultimately means the decisions about when a woman has a child is effectively removed from them, as they are forced to use, or lose, their frozen eggs.

Thirty-one years ago, when the act came into force, the technology was not as effective as it is now, meaning the quality of eggs frozen long term could not be guaranteed. However, technology advancements mean this deadline is no longer fit-for-purpose.

There is a government consultation currently in the works that goes a way to address this, looking at extending the storage of gametes beyond 10-years. This potential change in the law is long overdue and will give women concerned about declining fertility more time and options.

Sperm donation

It is important prospective parents and donors considering sperm donation understand the legal position before they embark upon their journey.

Conception at home

The method of conception (either artificial insemination or intercourse) is crucially important from a legal perspective in the case of conception at home.
If the prospective parents are married or in a civil partnership, the deciding factor as to who is the second legal parent of the child (with the first being the person who gives birth to the child) is decided based on the means of conception.

For example, if conception is via insemination, the donor will have no status as the legal father. If via intercourse, the donor does have status as the legal father.
If the prospective parent is single, when conception takes place at home, the sperm donor is the child’s legal father. This is the case even if the donor is not named on the child’s birth certificate, which only affects the donor’s parental responsibility and not their legal parent status.

What does legal parenthood mean?

As a legal parent, the donor has a legal obligation to the child and can be required to support the child financially, even if this was not their intention at the time of conception.

Legal parenthood allows the holder to make applications to the court regarding arrangements for the child without requiring the court’s permission.

However, it may be possible to extinguish this liability through adoption.

Conception through a licensed clinic

If the parties decide to donate through a licensed clinic, none of the above applies.

The donor (if that is what the parties acknowledge him as being through the clinic process) will not be a legal parent unless it is agreed that he should be named as such.

Donation through a clinic simplifies matters, ensures treatment is safe, is regulated and shouldn’t leave anything open to interpretation, although there is a cost.

A changing world

With more couples choosing an informal arrangement for sperm donation rather than going to a clinic, there is a risk of the position of legal parenthood becoming complicated as a result of the current law.

It’s time to review the law to consider different ways couples can have a baby through sperm donation and ensure the position is clear. This would help all parties make decisions with full knowledge of the situation.

Surrogacy

Using a surrogate may not be a new way of starting a family, but is gaining popularity. Applications to the family court from people who had a baby through surrogacy for a parental order has tripled between 2011 and 2018. Although with some parents not undertaking a legal arrangement, the number of children born via surrogacy may be higher.

At present, surrogacy in England and Wales can be an uncertain process for prospective parents.

Surrogacy arrangements are only legal if they are altruistic, meaning there can be no legally binding agreement placing both the surrogate and intended parents in a vulnerable position.

This often drives people abroad to those countries where the laws are more favourable, giving them greater certainty but creating other concerns such as immigration issues. Parents will also still require a parental order here for their legal parenthood to be recognised.

Some reform is afoot. 2019 saw the law change to allow single applicants to apply for a parental order, thereby opening the door for single parents to undertake surrogacy. In addition, the government undertook a consultation on surrogacy that same year.

The final report and recommendations for reform of the law together with a draft Bill are not, however, expected until early 2022. It remains to be seen whether proposed reforms will go far enough.

With more people than ever relying on technology to help them start a family, it is clear that the law needs to catch up, and quickly, with today’s modern families and fertility choices.