Alternative Families and Fertility Law

At JMW, we are committed to providing you with cutting edge legal advice to secure a firm legal foundation for your family. Whether you are considering adopting a child within the UK or overseas, conceiving a child through gamete donation, co-parenting or extending your family via surrogacy, we can help.

Working closely with you, our 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.

To find out more about our services, simply call us on 0800 652 5577 or complete our online enquiry form and we will give you a call back at a convenient time.

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 treatment, surrogacy and sperm and egg donation have changed the way we think about the traditional family. Alongside scientific developments, the law and wider society have come to recognise the diversity of modern families.

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 the law and it is essential that the correct procedures are followed so that the legal status of your children matches your intentions.

We have a firm reputation for providing legal advice about:

For an overview of the history of alternative families and the law in the UK, visit our interactive infographic, or view our videos below.

Our People

Family law Partner Cara Nuttall specialises in building families and fertility law. Cara has huge experience of surrogacy arrangements - both within the UK and with an international dimension - LGBT parenting, co-parenting agreements between individuals who wish to raise a child outside a traditional relationship structure, 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, Cara 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 Cara could not be better placed to foresee possible difficulties in a proposed arrangement for building a family and can help you protect yourself from potential future problems.

FAQs

What are alternative families?

Alternative families is an umbrella term for the diverse ways in which couples and individuals build their families. It includes families with children through adoption or surrogacy, co-parents who have conceived a child outside of a traditional married or cohabiting relationship, and families with children conceived using donor eggs, sperm or embryos.

Can gay men start a family with a surrogate?

Yes. Men can conceive through surrogacy whether they are single or in a married, civil partnered 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 parent 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 legal 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, and so that there are no immigration-related problems associated with bringing the child to the country in which the intended parent(s) reside(s).

Can we use a known sperm donor to start a family?

Yes. Couples and individuals who need to use donated sperm can choose to use sperm from an anonymous donor or an individual known to them. An anonymous donor has no possibility of establishing a role in their biological child’s life while they are a minor. 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 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’s 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. We can help you put this agreement together and advise you on the legal implications of your plans to build your family.

I would like to donate sperm but I have heard that the child can now trace you in future. I don't mind this in principle but I am concerned about the detail 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 donated sperm and/or eggs (gametes) can find out identifying information about any 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.

I would like to donate sperm but I have heard that the child can now trace you in 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 donated sperm and/or eggs (gametes) can find out identifying information about any 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.

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, etc. 

What constitutes a reasonable expense will depend very much on the particular circumstances of both the surrogate and the intended parents. 

We 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 really important for intended parents to undertake thorough research before proceeding, more so where there is an international element.

Different countries regulate surrogacy in a whole host of 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, such as certain US states, commercial surrogacy is entirely legal whereas in many, including the UK, it is illegal. 

When considering surrogacy overseas, 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 for transferring parenthood to the intended parents. They will also need advice on the immigration aspects of the arrangement, so that the intended parents can be present in the overseas country for the required amount of time, bring their child home easily, and get the appropriate country’s citizenship for them.

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 surrogate has no right 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.

Can gay couples adopt?

Yes. Since 2005, adoption in the UK has been open to all persons, married, single, cohabiting or in a civil partnership, regardless of sex, gender identity or sexual orientation. 
The application process is extremely thorough and there will be circumstances in which persons wishing to adopt a child are not approved by the relevant agency. However, neither sex, gender, marital/civil partnership status nor sexual orientation is a valid ground for refusing an application.

Is a co-parenting agreement legally binding?

A co-parenting agreement is not a legal contract and so, in that sense, it is not binding. However, it performs an important role for individuals seeking to build a family through co-parenting. 

Drawing up the agreement is itself a very valuable process. The act of recording important decisions in writing can help flush out potential areas of dispute or aspects of the arrangement where there are differences of understanding. The agreement should be put together before conception so that potential issues are worked out in a calm and unpressurised way.

If a dispute about arrangements for the child were to arise between co-parents, the agreement can provide a useful indication of what the adults’ intentions were before embarking on the process. If the court becomes involved in a dispute, its paramount consideration would be the welfare of the child, rather than seeking to hold the parties to the agreement. However, the agreement would be a useful piece of evidence to deepen the court’s understanding. 

Talk to Us

Find out more about how our solicitors can help you with any legal aspect relating to alternative families and fertility by getting in touch today. Simply call us on 0800 652 5577 or complete our online enquiry form and a member of the team will call you back as soon as possible.

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