Fertility Law Solicitors

Guiding families with specialist fertility and surrogacy legal expertise

Planning a family can be both an exciting and overwhelming experience, but it can be all the more challenging if you are considering fertility treatment to help start or grow your family.

At Stephens Scown, our specialist Family lawyers can advise and assist on issues concerning fertility law, providing expertise and support for individuals and couples looking to start or grow their family.

There are several fertility treatments available to individuals and couples including:

• IVF treatment (where eggs are fertilised with sperm in a laboratory and the embryos transferred into the woman’s womb).
• IUI treatment (where sperm are placed directly into a woman’s uterus).
• ICSI treatment (where a sperm is injected directly into an egg).
• Surrogacy (where a woman carries and gives birth to a baby for another person or couple).
• Sperm and egg donation.
• Embryo donation.

What is fertility law?

There is no actual definition of fertility law. However, there are many legal considerations that prospective parents need to be aware of before embarking on fertility treatment including:

• Legal parentage
• Parental rights and responsibility
• Partner and donor consent

Legal parentage

Legal parentage creates a legal relationship between a parent and a child and determines who can be named on the child’s birth certificate, and who has financial rights and responsibilities for a child, including inheritance rights.

There can sometimes be issues when a child is conceived through artificial insemination or surrogacy as legally, a child can only have two parents.

The woman who carried the child will automatically be the child’s legal mother, despite how the child was conceived.

The legal father will depend on certain factors:

• If the mother conceived using a Human Fertilisation and Embryology Authority (HFEA) licenced clinic and the couple were married or in a civil partnership and their partner consented to the treatment, the mother’s partner will automatically be the legal father of the child.
• If the above factors apply but the mother was not married or in a civil partnership, their partner can still be considered as the legal father if they signed various HFEA forms.
• If the mother conceived using a sperm donor in a licenced clinic, the donor has no legal rights of the child. However, the sperm donor can become the legal father if there is no second parent in some circumstances.

A declaration of parentage can be entered into to determine the legal parents of a child.

Parental rights and responsibility

The parental rights and parental responsibility will depend on how a child is conceived and the legal status of the parents.

The law relating to egg, sperm, and embryo donation sets out who will be the child’s legal parents and have parental responsibility for the child.

Parental responsibility defines the rights, duties, powers, and responsibilities a person has for a child. It enables decisions to be made for the child, such as which school they should attend and consent to medical treatment.

If the parents are not married or in a civil partnership, and did not sign an agreement at an HFEA clinic, they may be able to obtain parental responsibility for the child in the following ways:

• by being named on the birth certificate;
• by subsequently marrying or entering a civil partnership with the mother;
• with a legal parental responsibility agreement; or
• through a court order.

Partner and donor consent

In UK fertility law, both the recipient of treatment and their partner, if applicable, must give consent for the treatment, including the use of donor sperm, eggs, or embryos to enable the partner to be the legal parent of the child. This consent needs to be provided before the treatment is received to enable legal parentage to be established. The consent can be withdrawn at any time before the treatment takes place.

The donor could be:

• someone you do or do not know
• undertaken at a fertility clinic or by private arrangement
• undertaken overseas

Each option has different legal implications and here at Stephens Scown, we can assist by advising on the legalities and drafting donor agreements.

Surrogacy Law

Surrogacy is where a woman carries and gives birth to a child for another person or couple.

There are two types of surrogacy arrangement:

• Where the surrogate has no genetic link to the child.
• Where the surrogate’s egg is used with sperm of the intended father.

In both cases, the surrogate will be the child’s legal parent at the time of the child’s birth as the woman who carried and gives birth to the child is automatically the legal mother, regardless of how the child was conceived.

If the surrogate is married or in a civil partnership, their spouse or civil partner will be the child’s second parent at birth, unless they did not give their permission.

Following the birth, the legal parenthood can be transferred from the surrogate to the intended parents by the courts making a parental order or the child being adopted. To obtain a parental order, at least one of the intended parents must be biologically related to the child.

The parental order will transfer the legal parenthood from the surrogate (and her spouse or civil partner, if she has one) to the intended parents. It can only be made with the surrogate’s consent. It involves an application to the court and for the court to consider whether a parental order is made.

If the intended parents are considering surrogacy, they should enter into a surrogacy agreement. A surrogacy agreement can set out the parties’ understanding and agreement. It is not legally binding but can provide a statement of intention about how the arrangement will work and the commitment that each party is making to the other in advance of the surrogacy commencing. This ensures there is effective communication and mutual understanding between all parties.

How Stephens Scown can help

At Stephens Scown, we understand that fertility law can be confusing and are here to support you. Our team of specialist lawyers will guide you through the process and offer specialised, empathetic, and professional advice tailored to your unique case.

We can help in matters concerning fertility law including:

• Providing advice on, and drafting, sperm donor agreements
• Surrogacy
• Parental orders, adoption orders, and other family related court orders
• Issues with legal parenthood and parental responsibility
• Co-parenting
• Helping families resolve fertility and surrogacy related disputes
• Adoption

Our team has been ranked consistently as the best solicitors in the region for children and family law, in both The Legal 500 and Chambers.

Frequently asked questions:

How can fertility law firms assist with legal issues?

Fertility law firms can provide advice on all matters concerning fertility law including surrogacy, parental orders, adopting a child, sperm donor agreements, assisting with issues concerning legal parenthood, co-parenting and parental responsibility issues.

What surrogacy laws may require the involvement of a solicitor?

A solicitor can assist with issues concerning surrogacy including drafting surrogacy agreements prior to the surrogacy commencing, transferring legal parenthood following the birth of the child by way of a parental order, issues relating to the adoption of the child, and co-parenting issues including whether the surrogate continues to have contact with the child or not following the birth.

What legal parental rights do surrogacy parents have?

The intended parents have no parental rights until the legal parentage has been transferred from the surrogate to the intended parents following the birth of the child by way of a parental order. 

Once the parental order is made, the surrogate and their spouse or civil partner will lose their parental rights to the child. Future relationships will be at the discretion of the intended parents.

What laws are in place around donor anonymity?

The law concerning releasing a sperm, egg or embryo donor’s personal information to people conceived from their donation changed in April 2005. If a person donated sperm, eggs or embryos on or after 1 April 2005, people conceived from the donation will be able to find out information regarding their donor when they reach 16 and 18 years of age. At 18, the donor’s full name and address can be provided. If the donation was between 1 August 1991 and 31 March 2005, the identity of the donor will not be disclosed.