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Assisted reproduction disputes: modern families and UK law
Assisted reproduction and modern family disputes create wide ranging and complex legal issues under fertility, family and medical law in the UK. They require specialist legal expertise to navigate complex legislation, novel legal issues and evolving case law and policy.
A range of factors can cause or affect the outcome of assisted reproduction and modern family disputes, including: parties’ marital and relationship status, conception arrangements, legal understanding, nature and content of any written agreement, parties’ expectations and conduct, welfare of the child, status of HFEA consent forms and fertility clinic policies.
Co-parenting dispute
Co-parenting arrangements can involve three, four or more adults who seek to conceive and parent a child together. They can work well in practice, but they also have the potential to be at higher risk of conflict and dispute given the increased numbers of adults involved.
A written co-parenting agreement can help the parties understand the legal and wider issues, settle their wishes and arrangements for the child and seek to minimise the risks. However, not all parties enter into a written agreement at the outset and written agreements can vary greatly in content and relevance.
Misunderstandings and disputes between co-parents can arise over a range of issues including: identity, birth registration, financial arrangements, time spent with the child, exercise of parental responsibility and care and upbringing of the child.
Modern family assisted reproduction dispute
Modern families and those formed through assisted reproduction can create complex legal issues and disputes when relationships breakdown, separation and divorce occurs, parents form new relationships and remarry/enter into civil partnership and families restructure.
A modern family and assisted reproduction dispute concerning a child can involve a range of legal issues, including:
- Legal status of an ex-partner/spouse/civil partner for a child.
- Issues about an ex-partner/spouse/civil partner’s spending time with a child or being involved in their care and upbringing.
- Legal status and identity of a step-parent or new partner for a child.
- Acquisition and exercise of parental responsibility by a step-parent for a child.
- Dispute about a child’s name and identity.
- Dispute about financial provision for a child.
Posthumous conception dispute
An individual’s fertility can be lost through terminal illness, a fatal accident or unexpected death at any point in life. This can create urgent and legally and emotionally challenging issues and disputes when a partner, spouse or close family member (e.g. parent) seeks to preserve their loved one’s fertility and conceive a child with their gametes after their death.
Posthumous conception law is complex in the UK. Consent to the use of an individual’s eggs, sperm or embryos comprising their gametes is governed by specific legal criteria under the Human Fertilisation and Embryology Act 1990.
Complex legal issues and disputes can encompass:
- Consent to procurement of an individual’s eggs or sperm if they are incapacitated or have passed away.
- Evidence around consent to storage of eggs, sperm or embryos comprising the individual’s gametes posthumously.
- Evidence around consent to use of eggs, sperm or embryos in posthumous fertility treatment.
Known donor and biological parent dispute
A known donor will be a biological parent of the child. Mainstream family law denotes that legal parenthood follows biology (except in adoption cases) under English law. In contrast, assisted reproduction law can (but not always) disconnect biology and legal parenthood.
This can create complex legal issues for modern families around legal status and rights of the parties.
The English Family Court can take into account a known donor agreement when determining a dispute with a known donor/biological parent, although this does not have to be legally determinative. Not all parties enter into a written agreement at the outset and written agreements can vary greatly in content and quality.
The level of involvement of a known donor/biological parent in the lives of the parents and/or the child can also vary greatly. Depending upon the history and circumstances of the case, this can add further layers of emotional, practical and legal complexity.
Misunderstandings and disputes between parent/s and a known donor can arise over a range of issues including: identity, birth certificate arrangements, financial liability, time spent with the child, care and upbringing of the child.
Surrogacy dispute
Surrogacy is legally restricted in the UK. Surrogacy agreements are not legally binding under English law. There is also a public policy prohibition against commercial payments in the UK.
A dispute involving a surrogate born child raises complex legal issues under fertility and family law in the UK. They can be even more challenging when they involve a straight surrogate, a surrogate who was a family member or close personal friend or an international element or conflict of law. Legal difficulties and disputes can encompass a wide range of issues, including:
- Level of payments to a surrogate.
- A surrogate’s refusal to hand over the child to the intended parent/s.
- A surrogate’s refusal or failure to consent to a parental order.
- A surrogate’s wish for continued involvement in the child’s life.
- Legal status of an intended parent or step-parent for a surrogate child.
- Legal status and identity of a surrogate born child.
- Arrangements for the care and upbringing of a surrogate born child.
IVF and fertility treatment disputes
Difficulties and disputes about fertility treatment can encompass a range of complex fertility, family and medical law issues, including:
- Consent to storage/use of eggs, sperm and embryos in fertility treatment.
- Errors in the completion of HFEA consent forms at UK fertility clinics or missing forms.
- IVF mix-up and resulting issues about the birth of a child.
- Problems with fertility treatment resulting in the loss of pregnancy or individual fertility.
- Errors or accidents resulting in the destruction of eggs, sperm, embryos.
Specialist legal advice
Specialist fertility and family law advice ensures proactive management and resolution of complex modern family and assisted reproduction disputes. It helps parents, donors, surrogates and others make informed decisions and get the best outcomes.
