At JMW, we are committed to providing you with cutting edge legal advice that will secure a firm legal foundation for your family. Whether you are looking to conceive a child through gamete donation or extend your family through surrogacy, we can help.
Working closely with you, our fertility law solicitors will build a relationship based on your wishes and requirements to ensure we meet your needs, identify and resolve any issues, and protect your interests.
How JMW Can Help
There are few things more important in life than family. The last few decades have opened up many new options for couples and individuals to build their families. Advances in fertility treatments, surrogacy and sperm and egg donation have changed the way we think about the traditional family.
Families are made in many different ways. A wide variety of legal structures exist to enable solo parents, same sex couples and opposite sex couples to extend their families. This can be a fast-moving, technical area of family law and it is essential that the correct procedures are followed so that the legal position of your children matches your intentions.
Our fertility lawyers have a firm reputation for providing legal advice about:
FAQs About Fertility Law
- What is parental responsibility?
Parental responsibility refers to the legal rights and duties that a parent has towards their child. It includes making important decisions in relation to a child such as their name, where they should go to school, where they should live, and any medical treatment they should receive. Parental responsibility is defined in the Children Act 1989, as all the rights, duties, powers, responsibilities, and authority which, by law, a parent of a child has in relation to the child and their property.
In the UK, birth mothers automatically have parental responsibility for their child. Fathers also automatically have parental responsibility if they are married to the birth mother. Unmarried fathers can obtain parental responsibility most commonly through being named on the child’s birth certificate. There are other ways in which fathers can obtain parental responsibility including an application to court for a parental responsibility order or by entering into a parental responsibility agreement with the mother.
Parental responsibility legally ends when a child reaches the age of 18.
- Can gay men start a family with a surrogate?
Men can conceive through surrogacy whether they are single or in a marriage, civil partnership or cohabiting couple. In the UK, a male couple can become the legal parents of a child born through surrogacy, provided that one of them is genetically related to the child. A single man can also become a legal father through surrogacy in the UK provided he is genetically related to the child.
The legal framework for surrogacy differs markedly throughout the world, ranging from full recognition of intended parents’ legal status before birth to an outright ban on any form of surrogacy. We always recommend that anyone considering surrogacy overseas takes specialist advice in both the overseas country and in the UK to ensure that the path they wish to take is capable of the necessary legal recognition. This will help to prevent any immigration-related problems associated with bringing the child to the country in which the intended parents reside.
- Can we use a known sperm donor to start a family?
Couples and individuals who need to undergo assisted reproduction can choose to use sperm from an anonymous donor or an individual known to them. An anonymous donor has no possibility of establishing parental responsibility in their biological child’s life while they are under 18. Once the child reaches 18 years old, they can obtain the donor’s name, date of birth and last known address if the donation took place on or after 1st April 2005.
Depending on the family composition and the circumstances of donor conception, a known sperm donor may or may not be treated as the child’s legal parent. Whether or not the sperm donor is technically the legal parent of the child, they may still play a role in the child’s life. Some see this as a positive, others as a negative; it is a very personal decision.
In the event of a dispute between a sperm donor and the child’s primary carer(s), the court can make a child arrangements order or other orders, which usually concern the extent and nature of contact between the child and the sperm donor.
Donors, couples and individuals who wish to become parents using sperm from a known donor should do so with their eyes open to the legal consequences of their chosen arrangement. The adults’ expectations of who should play a parental role in the child’s life may differ from the allocation of parental status in accordance with the law and it is crucial to be aware of this from the outset. It may also be worthwhile to discuss the potential emotional and relationship impact of conceiving via a known donor with a fertility counsellor.
A donation agreement can be a really helpful way of identifying potential areas of dispute or misunderstanding. Our fertility lawyers can help you put this agreement together and advise you on the legal considerations of your plans to build your family.
- Can I pay someone to act as a surrogate for me?
Commercial surrogacy is illegal in this country, so a surrogate or surrogacy agency cannot make a profit from offering their service without breaking the law. However, intended parents can pay a surrogate 'reasonable expenses' to cover costs associated with the pregnancy and birth, such as private medical expenses, travelling expenses for antenatal appointments, the purchase of maternity clothes, and so on.
What constitutes a reasonable expense will depend on the particular circumstances of both the surrogate and the intended parents.
Our fertility law solicitors have advised on numerous surrogacy arrangements and have a good instinct for what may present a difficulty. The earlier legal advice is taken, the easier it is to foresee potential problems and guard against them.
- Can I use a surrogate from another country?
Couples and individuals who wish to build their family through surrogacy can use a surrogate based in the UK or in a foreign country. The legal situation is more complicated when aspects of the surrogacy arrangement take place overseas. It is always very important for intended parents to undertake thorough research before proceeding, and more so where there is an international element.
Different countries regulate surrogacy in different ways. Many do not allow it at all. Some only allow certain groups (e.g. opposite sex married couples) to become parents through surrogacy. In some other countries and jurisdictions, such as certain US states, commercial surrogacy is entirely legal whereas in many, including the UK, it is illegal.
When considering international surrogacy, intended parents who live in the UK should take specialist legal advice both here and in the country in which the surrogacy arrangement will take place. This legal advice should address the legality of the surrogacy and any payments to be made, the allocation of legal parenthood, and the process to acquire parental responsibility. The intended parents will also need advice on the immigration aspects of the arrangement, so that they can be present in the overseas country for the required amount of time, bring their child home easily, and secure the appropriate citizenship for the child in their home country.
- What happens if a disagreement arises between a surrogate and the intended parents?
The first thing to say is that these disputes are rare. Where disputes arise, there is potential for them to be resolved through dialogue and negotiation, without the need for the court to make a decision. However, when this is not possible, the court will have to decide.
If a dispute arises before legal parenthood has been transferred - for example, if a surrogate will not allow the child to leave her care or has changed her mind after handing the child over - the court will have to make a decision as to the child’s future living and contact arrangements. The court’s paramount consideration will be the child’s welfare. There are no presumptions as to what will be in the child’s best interests and it will depend entirely on the particular circumstances of the case.
Once the intended parent(s) have had legal parenthood transferred to them following the making of a parental order, the child’s birth mother has no legal rights to be involved in the child’s life or take part in decision-making. Many surrogates do, in fact, stay in contact with the families they have helped, with both sides valuing this uniquely special relationship. Individuals need to make a decision about what is right for them.
After a parental order has been made, the surrogate is not automatically entitled to make an application to the court about the child and would need to make a strong case for permission to be granted before proceeding.
I would like to donate sperm but I have heard that your child can now trace you in the future. I don’t mind this in principle but I am concerned and worried about potential financial obligations to the child. What is the situation?
Following changes to the law in 2005, a child conceived after this date using donor sperm and/or eggs (gametes) can find out identifying information about the donor once they reach the age of 18. A donor could be traced by a child conceived with their gametes once they have become an adult. However, if the donation took place via a licensed fertility clinic, there is no legal link between the child and the donor and, therefore, no potential for any financial claim to be made against them.
Family law Partner Beverley Jones specialises in fertility law. Beverley has huge experience of surrogacy law and arrangements - both within the UK and with an international dimension - LGBTQI+ parenting, sperm and egg donation from both known and anonymous donors, and adoption.
In addition to her work helping families to fulfil their ambition of becoming parents, Beverley has a first-class reputation for advising parents and other family members involved in legal issues relating to children, including international child abduction and high-conflict disputes over residence and contact. This means that Beverley could not be better placed to foresee possible difficulties in a proposed arrangement for building a family and help you protect yourself from potential future problems.