Fertility treatment and the law for same-sex couples – Tees Law

Becoming a parent is an exciting time… but there’s a lot to think about for same-sex couples, writes Caroline Andrews, Senior Associate at Tees Law, in this guest blog. Before you start fertility treatment, it’s essential you are aware of the legal implications.

Legal considerations for same-sex couples 

Fertility law has changed quickly in the last two decades – and is set to keep evolving in the years ahead.

Change may be driven in part by campaigns about funding for fertility treatment, such as a judicial review launched in 2021 by Megan and Whitney Bacon-Evans against their NHS Clinical Commissioning Group, claiming that NHS funding is discriminating against LGBTQ+ families.

The couple say they are required to undergo 12 rounds of private treatment before they can get NHS support. Just 14% of female same-sex couples have received NHS-funded IVF cycles, according to the HFEA, compared with 39% of heterosexual patients.

Caroline Andrews, Senior Associate, Tees Law
Caroline Andrews, Senior Associate, Tees Law

Laws are being reviewed

Looking wider, the Surrogacy Act 1985 is currently under review, having had a law commission report looking at the balance between pre conception; protection of the child when born, protection of the intended parents. The Human Fertilisation and Embryology (HFEA) Act 2008 is also potentially in line to be updated and bring a more patient-centre focus to the Act. Science has developed rapidly and so the law needs to play catch up.

Some measures have already come into play. In June 2021, a new consent form was introduced, which allows a woman to give her eggs or embryos to her female partner without being seen as a donor. Questions remain, however, over how those eggs are medically screened –  so it’s best to speak to a regulated clinic to discuss this option.

Some of the legal definitions explained

Legal parenthood is a legal parent-child connection and governs issues such as inheritance, financial provision and court proceedings relating to a child and their legal identity. A child can only have two legal parents.

This is different to parental responsibility, which refers to a parent’s duties to their child such as making decisions on education.

Who is a parent?

If you give birth to a child, you are automatically their legal parent. If you are married or in a registered civil partnership before treatment starts, your partner will also automatically be the legal parent – unless they do not consent to the treatment.

Since April 2009, same-sex couples have the same legal rights as heterosexual couples. However, if you are not married or in a civil partnership, your partner will not automatically be the legal parent. In this instance, it depends on whether you use a licensed clinic and what processes are followed.

Benefits of a licensed clinic

The HFEA Act 2008 and the Surrogacy Act 1985 provides protection for intended parents under licensed conditions. So using a UK licensed fertility clinic such as Bourn Hall is crucial for minimising the risk of potential disputes, such as those that can occur in relation to matters with a donor or a surrogate.

If a child is conceived through a licensed clinic, the birth parent can sign an agreement to name their partner as the second legal parent.

Informed consent

If you are not married or in a civil partnership, paperwork is especially important. The key point to remember is that consent must be given in writing before starting treatment.

This must be informed consent, namely consent given after being informed of the facts, benefits, risks and alternatives. This can include showing that those involved had counselling prior to treatment. If you do not follow the correct procedures, the non-birth parent could later have their legal parenthood denied.

Selecting a donor

Since April 2005, donors can be identifiable, which means donor-conceived children can reach out to them when they turn 18.

Counselling given ahead of treatment can also help prepare you and your children for this moment. Another great resource is the Donor Conception Network, a charity network that offers support to parents and children.

An important consideration is whether you want to use a known or unknown donor.

Conceiving with an unknown donor through a UK licensed fertility clinic means you and your child are protected by a legal framework. The donor will have no legal responsibility if the licensed conditions are followed.

Conceiving with a known donor is more complicated. The donor’s level of involvement will vary in each case and their position regarding legal parenthood is not always clear. It’s therefore essential that everyone knows and agrees to the donor’s role in the child’s life and upbringing at the outset.

Top Tips

Use a licensed clinic – If you don’t, you could face legal issues over things like financial responsibility and the donor’s right to see the child. In the worst case scenario, if you’re not protected, the donor could even obtain a declaration of parentage in the future.

Keep a diary – This may seem simple but making a note of who you saw and what paperwork you signed can be crucial should any legal parenthood issues arise. Don’t assume you’ll remember: after multiple appointments, facts and faces can all merge into one! Case Law has shown that cases can turn on when a document was signed.

Be organised – A tick on a form can make all the difference to your legal status. Make sure you understand all the paperwork and keep copies of everything for your records. If you don’t understand then ask.

Know the clinic’s responsible person – This is the person who has specific training on the legalities. They should be able to assist you with any queries you might have.

Speak to your employer – Fertility treatment can be gruelling. Before you start the process, make sure you know your employer’s fertility policy. Think about how you will manage medical appointments and leave.

Talk to your partner – It’s crucial that you and your partner are on the same page throughout the process. When becoming a parent, it’s a good idea to get other legal issues sorted, including your will or life insurance policy.

Know the costs – Clinics like Bourn Hall have a duty to be transparent. Ask at the outset about costs and you’ll be able to plan ahead. The HFEA have recently run a consumer campaign to highlight the risk of hidden costs in treatment.

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