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Fertility and Parenting Law

Fertility treatment can be an option for both couples and single people who are not able to conceive naturally and/or require the assistance of a third party to become parents and create their family. For example, cases where the use of donor eggs, sperm or embryos or a surrogate is required.

The legal frameworks that regulate the creation of your family can be complex and are constantly evolving. There are different legal considerations depending on the process you choose to follow and the specific circumstances of your family and the child’s conception. The legal recognition of any second parent depends on the specific circumstances of the case and can be complicated.

Our Fertility and Parenting Law Specialists can advise on the legal implications of fertility treatment, the donation process and any surrogacy arrangement both domestically and internationally.

With regards to surrogacy, they provide advice in relation to applying for parental orders, including any international elements which may need to be considered.

They also provide advice in relation to co-parenting agreements in cases where a known donor is to be used.

At Fisher Jones Greenwood we are also able to provide tailored, specialist advice in relation to Wills, employment matters and immigration, all of which can be relevant when creating your family.

The advice on this website is provided for general information only and is not intended to constitute legal advice. You should not act or rely on any of this information, but should seek legal advice on your particular circumstances.

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Fertility and Parenting Law Specialists

How Surrogacy Works

How Surrogacy Works

Surrogacy involves complicated legal issues and we recommend that you seek legal advice before making any decisions.

Surrogacy is an arrangement in which a woman carries and delivers a child for another couple or person.  The surrogate may be the child’s genetic mother (called traditional surrogacy), or she may not be the child’s genetic mother (called gestational surrogacy).

In a traditional surrogacy, the child may be conceived by:

  • home artificial insemination using fresh or frozen sperm
  • impregnated by intrauterine insemination
  • intracervical insemination performed at a fertility clinic

gestational surrogacy involves the transfer of a previously created embryo and for this reason the process always takes place in a clinical setting.

The intended parent or parents, may arrange a surrogate pregnancy because of female infertility, other medical issues which make pregnancy or delivery impossible, risky or otherwise undesirable, or because the intended parent or parents are male.

The sperm or eggs (gametes) may be provided by one or both of the commissioning parents, but donor sperm, eggs and embryos may also be used.

It is important to be aware that whilst surrogacy is legal in the UK, the Surrogacy Arrangements Act 1985 makes commercially arranged surrogacy (i.e. arranging surrogacy for profit) by any third party and advertising in relation to surrogacy, both in terms advertising to find a surrogate, and advertising to act as a surrogate, including online advertising, illegal. There are however, not for profit organisations, who are permitted to match surrogates with intended parents, on a non-commercial basis.

In terms of payment for surrogacy, the intended parents are permitted to pay the surrogate mother her “reasonable expenses” and this is an issue that is considered by the court when determining whether to make a parental order in favour of the intended parents.

To date, a definition of reasonable expenses has not been given, nor has any fixed amount of what is acceptable been determined, however a figure of around £15,000 has frequently been upheld as reasonable.  In practice, it is left for the court to decide what is reasonable on a case by case basis and has traditionally taken a fairly relaxed approach in this regard.

The surrogate mother and the intended parents can enter into a surrogacy agreement, but any agreement is not legally binding and will be unenforceable, even if it has been signed and expenses payments have been made to the surrogate. It is also illegal to charge for the preparation of such an agreement.

Understandably, intended parents may worry that the surrogate mother may change her mind and conversely the surrogate mother may worry that the intended parents may change theirs. In practice, there have in fact only been two reported cases of such a dispute arising. In such circumstances, the court will deal with cases on an individual basis with careful consideration being given to what is in the child’s best interests.

The surrogate mother does have the legal right to keep the child, even if it is not genetically related to her.  She will be the legal mother of the child unless or until parenthood is transferred to the intended mother through a parental order or adoption after the birth of the child.  This is because, in law, the woman who gives birth is always treated as the mother.

It is always important to discuss the implications of a surrogacy arrangement with a solicitor before proceeding.

If you have any further questions regarding the law relating to surrogacy, please contact one of our Fertility and Parenting Law Specialists – call 01206 835320 or email [email protected].

The advice on this website is provided for general information only and is not intended to constitute legal advice. You should not act or rely on any of this information, but should seek legal advice on your particular circumstances.

Donation Process

Donation Process

The role of the Human Fertilisation and Embryology Authority

The Human Fertilisation and Embryology Authority (HFEA) is the UK’s independent regulator of treatment using eggs and sperm and is dedicated to the licensing and monitoring of UK fertility clinics and all UK research involving human embryos.

The HFEA was set up following the introduction of the Human Fertilisation and Embryology Act 1990, as amended by the Human Fertilisation and Embryology Act 2008.

In addition to being a regulatory body, the HFEA also hold a vast amount of information on the HFEA Register, which is the world’s largest national register, about in vitro fertilisation (IVF) and intra cytoplasmic sperm injection (ICSI), donor treatments and the storage of embryos, eggs and sperm.

Changes in the law introduced by the Human Fertilisation and Embryology Act 2008 allow the HFEA to make the information held on the HFEA Register much more accessible to both donors and donor conceived people alike.

Donation

Donation is the altruistic (selfless) gifting of embryos, eggs, or sperm for use in fertility treatment or research, enabling those who are unable to conceive without the help of a third party to be given the opportunity to have a family, or in the case of research, to promote advances in the treatment of infertility and knowledge of the disease.

Before you can become a donor, it is necessary to undergo a screening process to reduce the risk of passing on any diseases or deformities.

The criteria to be eligible to become a donor are different depending on whether you are donating embryos, eggs, or sperm:-

  • Embryo donation – The egg donor must be aged between 18 – 35 years old and the sperm donor must be aged between 18 – 45 years old.
  • Egg donation – The egg donor must be aged between 18 – 35 years old.
  • Sperm donation – The sperm donor must be aged between 18 – 41 years old.

Donors can receive compensation to reasonably cover any financial losses incurred in connection with their donations and again, the compensation that can be claimed differs depending on whether the donation is embryos, eggs, or sperm:-

  • Embryo donation – Embryo donors who have eggs, sperm, or embryos stored for use in their own treatment but then decide to donate them can receive compensation of up to £35.00 per subsequent clinic visit required in connection with the donation.
  • Egg donation – Egg donors can receive compensation of up to £750.00 per cycle of donation.

In addition to the above, many fertility clinics offer egg sharing programmes, so that in addition to the above expenses which may be claimed for egg donation, the cost of treatment may be subsided for the person donating their eggs.

  • Sperm donation – Sperm donors can receive compensation of up to £35.00 per clinic visit.

In all circumstances, there is also provision to claim an excess to cover higher expenses (for example, travel, accommodation, and childcare).  Where the donor is not resident in the UK, the donor will not be permitted to claim excess payments for overseas travel expenses.

Information Rights

Donor Conceived Children

Since its inception on 1 August 1991, the HFEA has kept a record of all donors and donor conceived children conceived at a HFEA licensed clinic.

On reaching the age of 16, all donor conceived children born after 1 April 2005 are able to obtain non-identifying information about the donor, such as their physical characteristics and occupation. At 18 years of age, it is then possible to obtain identifying information, such as the donors name, date of birth, and address.

Egg Donors and Sperm Donors

Since 1 October 2009, egg donors and sperm donors are entitled to request limited information from the HFEA to find out whether their donation was successful, the number of born as a result of their donation, and the sex and year of birth of any child born as a result of their donation.

The HFEA only hold non-identifying information about egg donors and sperm donors from 1 August 1991 to 31 March 2005, unless the egg donor or sperm donor has re-registered as an identifiable egg donor or sperm donor.

It is important to note that the HFEA Register will not hold any information in relation to either donor conceived children or egg donors and sperm donors who were either conceived or who donated outside of a UK licensed clinic or at home.

Consent

All egg and sperm donors must give formal written consent to an embryo being created with their gametes.  It is possible for egg donors and sperm donors to specify conditions which must be followed when giving their consent.

Formal consent must also be given for embryos to be donated to another person or used for research.

Withdrawal of Consent

Consent to treatment, storage, or research can be varied or withdrawn by either the egg donor or the sperm donor any time before the embryos are placed in the body of a woman or used for research.  Withdrawal of consent must be given formally in writing.

Once consent has been withdrawn to the storage of an embryo, everyone involved in the treatment process, i.e. the intended recipient and the other gamete provider, must be notified.  Storage then remains lawful for 12 months to allow a ‘cooling-off’ period for the person who has withdrawn their consent before the embryo is destroyed.  If during the 12 month period all parties give their consent the embryo can be allowed to perish before the expiry of the 12 month period.

The HFEA stipulates that anyone undergoing donor treatment should be offered counselling, although there is no obligation for this to be taken up.

Storage

From 1 October 2009, the law in relation to the storage periods for all embryos, eggs, and sperm was overhauled by the Human Fertilisation and Embryology Act 2008 allowing for a basic statutory storage period of 10 years for all embryos, eggs, and sperm.

This period can be extended up to a maximum of 55 yearly, on a 10 yearly cycle, providing that the egg and sperm donors provide their written consent to storage beyond 10 years and a written opinion is obtained from a registered medical practitioner that the egg or sperm donor or recipient is prematurely infertile.

Any embryos, eggs, or sperm stored prior to 1 October 2009 can still be stored under the old criteria unless you have opted into the new rules.

It is always important to discuss the implications of a surrogacy arrangement with a solicitor before proceeding.

If you have any further questions regarding the law relating to surrogacy, please contact one of our Fertility and Parenting Law Specialists.

Adoption – Becoming Legal Parents

Adoption – becoming a child’s legal parents

If the intended parents cannot apply for a parental order, for example, because neither of them are genetically related to the baby (donor egg and donor sperm or donor embryos were used), then adoption of the baby is the only option available to them, but it is not an easy one.

If adoption is to be the option used, then a registered adoption agency must be involved in this form of surrogacy arrangement. This is why it is important to get legal advice before you decide to embark on surrogacy.

This option does also involve the consent of the surrogate mother, and should they not agree, an application for a child arrangements order is the intended parents only way to resolve where the child will live in the future.

It is always important to discuss the implications of a surrogacy arrangement with a solicitor before proceeding.

If you have any further questions regarding the law relating to surrogacy, please contact one of our Fertility and Parenting Law Specialists – call 01206 835320 or email [email protected].

Applying for a Parental Order

Applying for a Parental Order – becoming a child’s legal parents

Under English Law, the legal mother of the child born through surrogacy will always be the woman who gives birth to the child (the surrogate mother).

If the intended parents wish to become the legal parents of the child, they may either apply to adopt the child or apply for a parental order.

The effect of a parental order is that it transfers the rights and obligations of parentage to the intended parents, providing that certain conditions are met.

Applications for a parental order must be made within the first six months of the child’s birth.  However, it cannot be made in the six weeks following the child’s birth as the agreement of the legal mother is ineffective in those first six weeks.

To be able to apply for a parental order:

  • At least one of the intended couple must be genetically related to the baby i.e. be the egg or sperm provider. Couples applying must be either husband and wife, civil partners, or two people living as cohabitants in an enduring family relationship who are not related to one another (a single person cannot apply for a parental order)
  • The child’s home must be with the intended parents, and either one or both of them must be domiciled (a permanent resident) in the United Kingdom
  • At the time of the making of the order, both the intended parents must be over 18 years of age
  • The court must be satisfied that the woman who carried the child and her husband/civil partner/cohabitant, if she has one, have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order (see what happens if the surrogate mother changes her mind)

The court can dispense with the need for the agreement of the birth mother where she cannot be found to give consent (reasonable steps need to be taken to find her) or if she is incapable of giving agreement.  Where this is the case, the applicants must state in the application that agreement is not required and provide a statement of facts setting out why.

The respondents to the application are the surrogate mother, any second parent, anyone with whom there is a provision for contact, and/or any other person or body with parental responsibility at the time of the application.

When an application has been made, the court will set a date for hearing the application and appoint a parental order reporter.  The parental order reporter investigates whether the relevant legal requirements have been met, and advises the court on whether there is any reason why an application should be refused.

The court must also be satisfied that no money or other benefit (other than for expenses reasonably incurred) were given or received between any of the parties in consideration of the arrangement i.e. that the surrogacy arrangement was not a commercial arrangement.  However, the court has the discretion to authorise certain payments and benefits between the parties.

The court’s paramount consideration is the child’s welfare, and the adoption welfare checklist will apply. The court has to have regard to a checklist of matters including how each couple or family may or may not be able to meet the needs of the child, throughout their life.  The procedural guidelines here are contained within the Human Fertilisation and Embryology (Parental Orders) Regulations 2010.

A parental order takes effect from the day it is made. At this point, it is advisable to make a Will, or change any existing Will to make provision for the child. Further details in relation to making a Will can be found here. If the intended parents are in current employment, it is also advisable to seek employment advice in order to ascertain their rights in relation to child care, and time away from work. Further details in relation to employment can be found here.

Should neither of the intended parents be biologically related to the child, adoption is the only route of transferring parentage. A child arrangements order will not extinguish the legal ties of the surrogate mother and her consenting husband, civil partner, or cohabitant. If a child arrangements order is made, stating the child is to live with the intended parents,  parental responsibility will be shared equally with the surrogate parents. An application for a special guardianship order, is also a possibility.

If the surrogate mother (or father) changes her (or his) mind, the intended parents will not be able to apply for a parental order and the appropriate application will be a child arrangements order.

It is always important to discuss the implications of a surrogacy arrangement with a solicitor before proceeding.

If you have any further questions regarding the law relating to surrogacy, please contact one of our Fertility and Parenting Law Specialists – call 01206 835320 or email [email protected].

The Father Rights

Surrogacy: The Legal Rights of Fathers

Unless parenthood is transferred to the intended father through a parental order or adoption, then the intended father will only become the legal father in the following situations:

  • If the surrogate mother is married or in a civil partnership at the time of her treatment (i.e. the placing in her of the embryo or the sperm and eggs, or her artificial insemination), the child’s legal father/legal second parent, will be the person married to/in a civil partnership with, the surrogate mother at the time of the treatment (unless it is shown that the husband/civil partner did not consent to the treatment)
  • Where the surrogate mother is unmarried and not in a civil partnership, the legal father, or second parent can be designated in two ways:
  1. If no one chooses otherwise, the intended father will be regarded as the legal father of the child, so long as he is the biological father
  2. If treatment was performed in a licensed clinic, the surrogate mother can appoint the intended mother or a non-biological father as the second parent.

It is always important to discuss the implications of a surrogacy arrangement with a solicitor before proceeding.

If you have any further questions regarding the law relating to surrogacy, please contact one of our Fertility and Parenting Law Specialists – call 01206 835320 or email [email protected].

Surrogacy – Employment

Employment Rights for Surrogate Mothers

Surrogate mothers, like all other birth mothers are entitled to full maternity leave and employment protection.

The government is currently working on new regulations which will introduce a form of adoption leave, which will give the equivalent of maternity/paternity leave and pay for intended parents through surrogacy. This will enable them to care for their new baby in the same way as other parents.

The new rules will come into force in April 2015, and will allow intended parents in a surrogacy arrangement, who intend to apply for a parental order, to choose which of them can claim the equivalent of maternity leave and pay, with the other being entitled to the equivalent of paternity leave and pay. The rules apply equally to heterosexual, and same-sex intended parents.

Legal rights to time off and pay are currently very limited but you should check whether your employer offers any contractual rights to time off and pay for intended parents in a surrogacy arrangement.

You are entitled to parental leave if you have worked for your employer for at least a year and you have an adoption order, or you are named on the child’s birth certificate and you have, or expect to have, parental responsibility.

Parental Leave entitles you to take up to 18 weeks leave, per parent, per child, up to your child’s fifth birthday, or up to five years from the start of the adoption. When the new rules come into force in April 2015, all parents will be able to take Parental Leave up to their child’s 18th birthday. You are only allowed to take a maximum of four weeks parental leave per child, per year, unless there is a workplace agreement which allows for more flexible arrangements or your employer allows you to take more than four weeks in one year.

If you want to take a large amount of parental leave following the birth of your child through a surrogacy arrangement, you will have to agree this with your employer.
You must give at least 21 days’ notice. Parental leave is unpaid, but some employers offer paid leave so you should check your contract or ask your employer.

In order to take as much paid leave as possible, intended parents can use annual leave. You should talk to your employer about how much annual leave you can use in one block. If you are saving up leave, you should check with your employer how much leave, if any, can be carried forward from one leave year to the next. You must also be sure to give your employer the correct notice for taking annual leave.

You can also ask your employer for unpaid leave. If this is agreed you should be sure to obtain your employer’s agreement in writing, including the date you are expected to return to work, and confirmation that you will be able to return to the same job.

For further information about employment rights for surrogate mothers, contact our Employment Specialists.

Surrogacy – Wills & Life Insurance

Wills, Life Insurance and Surrogacy

When a child is born through surrogacy the baby is legally the child of the mother who physically gave birth to it up until the time when a parental order is granted in favour of the intended parent. This rule applies whether that mother is genetically related to the baby or not.

Depending on the circumstances of the father of the child (link to section on “The Father’s Rights) there may be a period of time following the child’s birth where the legal rights and responsibilities for the child remain solely with the surrogate mother.

It is vitally important that all are protected during this period in the unfortunate event of any of the parties dying unexpectedly.

If you are a surrogate mother

If you are a surrogate mother and you have a Will, we would strongly advise that you keep it updated.  Should anything happen to you during or after the birth, but before the parental order is made, the surrogate child is legally yours.  Therefore that child could possibly take a share of your estate along with your own children (if any).

If you are a surrogate mother and you do not have a Will, then the intestacy rules will apply to your estate.  The surrogate child, being considered a child of your own, would inherit a share of your estate under these rules.  In order to rectify this, you will need to have a Will prepared which will exclude the surrogate child from having any rights of inheritance.  You will also need to express in your Will that you wish for the intended parents to be guardians of the surrogate child.

If you are the intended parents

Life Insurance
It is usual for the intended parents to take out a life insurance policy for the life of the surrogate mother in order to financially protect her family should anything happen to her as a result of the pregnancy.

Wills
If you are an intended parent, then you need to take account of the fact that until the Parental Order is made, the law may not recognise the child as ‘legally yours’.  In such circumstances, your Will should take this into consideration and expressly mention the surrogate baby, so that it is financially provided for in the event that you unexpectedly died before the parental order is granted. Consideration should also be given to who will take care of the baby, if you and your partner die, and you may wish to appoint guardians in the Will accordingly.

If you are currently in a surrogacy arrangement or about to enter into one, we would strongly advise you to make a Will or update an existing Will.  Please contact our specialist Wills department for advice.

International Surrogacy

In a surrogacy arrangement, if the child is born abroad, the intended couple can only apply for a parental order if they are living (or domiciled) in the UK.

The parental order officially transfers parental responsibility to the intended couple.  While waiting for the parental order to be processed, the child born abroad will require a visa in order to enter the UK.

The courts are able to grant a parental order if the standard requirements are met.  The Judge is required to consider the sums of money involved in the surrogacy arrangement and whether they are disproportionate or sufficient to overbear the will of the surrogate mother or be an affront to public policy in the UK.  The Judge will also look at the sums of money paid in light of other surrogacy arrangements made in the country of birth, where the surrogacy arrangement could have been entered into, whether the arrangement was legal in that country and how the intended parents have conducted themselves with regard to the matter.

International surrogacy raises highly complex issues of family and immigration law.  It is important that if you are considering entering into an international surrogacy arrangement that you look carefully at the arrangements as a whole, being sure to take legal advice both from a family solicitor and immigration lawyer.  You will also need to consider the child’s immigration and nationality status and the ability to bring the baby back into the UK.

At Fisher Jones Greenwood, we have specialist immigration lawyers who can advise you alongside our family lawyers, see our immigration pages for further details.

There are particularly complex issues when it comes to international surrogacy, which could result in a child being stranded in the country where they are born, leaving the intended parents with no legal recourse to bring the child to UK.

It is always important to discuss the implications of a surrogacy arrangement with a solicitor before proceeding.

If you have any further questions regarding the law relating to surrogacy, please contact one of our Fertility and Parenting Law Specialists – call 01206 835320 or email [email protected].

What if someone changes their mind?

What if the Surrogate Mother Changes Her Mind?

Understandably, both the surrogate and the intended parents may be concerned about what happens if the other party changes their mind about the surrogacy arrangement.  In reality, the incidence of either party to the arrangement changing their mind is rare.

To date, there have only been two reported cases in UK courts of the surrogate changing her mind: in one, residence was transferred to the intended parents and in the other, the child stayed with the surrogate.

Should the surrogate change her mind before or after the birth of the child, then she has the legal right to keep the child on birth, even if the baby is not genetically related to her.  This is a right of the surrogate, and one that has not gone without criticism and has led to a campaign for change.

The courts have said that the natural process of carrying and giving birth to a baby creates an attachment which may be so strong that the surrogate finds herself unable to give up the child.  This puts pressure on the surrogacy arrangement which by UK law has to be on the basis of goodwill and trust as public policy prevents the use of commercial surrogacy arrangements.

In the event of a dispute, each case will be dealt with on an individual basis on the facts of that particular case.  The court’s decision is guided by the paramount consideration of the child’s welfare, looking at what is in the best interests of the child.  The court will apply the adoption welfare checklist on an application for a parental order and the welfare checklist on an application for a child arrangements order.  The court will consider whether the child would suffer a measure of harm if removed from the surrogate and placed in the care of the intended parents, as well as how able each of the parents are to meet the child’s needs.

Surrogacy arrangements are not legally enforceable, even if a contract has been signed and the expenses of the surrogate have been paid.  (See more about this on our surrogacy pages).

On an application for a parental order by the intended parents, the court can only dispense with the surrogate’s consent if:

  • She cannot be found (and reasonable steps have been taken to find her).
  • She is found to be incapable of giving consent.

Like the surrogate, the intended parents are unlikely to change their mind.  In fact, there are no reported cases of this happening in this country, nor are there any reported cases of this happening in any international surrogacy cases involving UK parents.  There have, of course, been international cases in the news recently.

Where a child born through a surrogacy arrangement is conceived via In Vitro Fertilisation (IVF) at a licensed clinic, such clinics are required to follow the provisions of the Human Fertilisation and Embryology Act 2008 and the Human Fertilisation and Embryology Authority (HFEA) Code of Practice, which includes a requirement to :-

  • Ensure that proper consideration is taken of the welfare of any child born as a result of the treatment, and any other child who may be affected by the birth.
  • Assess the intended parents and the surrogate (and her partner, if she has one) in case there is a breakdown in the surrogacy arrangement.
  • Ensure that all those involved in the surrogacy arrangement have received advice about the legal parenthood of any child born via a surrogacy arrangement.
  • Give all those involved in the surrogacy arrangement an opportunity to receive proper counselling about the implications of the steps they are considering taking, which should include information of local counsellors and organisations that can provide relevant information if it is not possible services to be provided from a counsellor attached to the clinic.

It is always important for all parties to a surrogacy arrangement to seek legal advice to discuss the implications of a surrogacy arrangement before proceeding.

If you have any further questions regarding the law relating to surrogacy, please contact one of our Fertility and Parenting Law Specialists – call 01206 835320 or email [email protected].

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