Tag: adoption

Fertility Treatment: Legal Considerations

April 29, 2021, By Slater Heelis

Our family law experts comment on the complexities around parental responsibility when undergoing fertility treatment. There are major differences in parental responsibility depending on whether you conceive at an HFEA licenced clinic, or if you take a different route.

Planning a family via artificial insemination is a profound and life-changing decision. Early legal advice about who will be your child’s legal parents is therefore crucial in order to avoid any significant and unintended consequences.

In this blog, we will look at some of the important legal issues raised when using donor sperm in fertility treatment. These issues include legal parenthood, and parental responsibility.

Under English law, only two people at any one time can be a child’s legal parents. Legal parenthood is relevant to inheritances, citizenship, and whether a person will have a duty to maintain a child financially.

Parental responsibility can be held by more than two people, and relates to all the ‘rights, duties, powers, responsibilities and authority’ a person has in relation to a child. It is important because anyone with parental responsibility must be consulted in respect of significant matters such as where a child lives, which school they attend, medical treatment, and religious upbringing. If people with parental responsibility do not agree about any of these issues, then they will fall to be determined by the Family Court.

Fertility treatment, sperm donors, and the significance of HFEA licensed clinics

When a donor has donated sperm via an HFEA licensed clinic, that person will have no responsibility for the child financially or legally. They also have no say in how the child is brought up (they will not be a legal parent, or have parental responsibility). Typically, this will be the desired outcome.

Where an unknown donor has donated sperm, but this has not happened via an HFEA licensed clinic, the situation is more complex, and potentially problematic.

Marital Status

If you and your partner are married or civil partners, then the donor will not be a legal parent. However, if you are not married or civil partners, the donor will also potentially be a legal parent with parental responsibility, and your partner will potentially have no rights in respect of your child.

This is a complicated area of law, and the legal rights of all involved will depend on a number of different factors, including how and when you conceived, and the extent of each person’s relationship with your child.

Parental Responsibility

Situations can and do occur where the partner of the carrying parent has no rights to the child (despite what might have been intended), and the sperm donor has rights that were neither planned nor anticipated.

Unfortunately, some of these situations then result in contentious and very expensive court proceedings.

It is also important for donors to note that it is not possible to ‘opt out’ of being the legal father when donating outside of an HFEA licensed clinic setting, and it is therefore vital for all involved to seek legal advice prior to any such donation taking place.

In these circumstances where the sperm donation takes place in a ‘DIY’ setting, it may also be necessary for the carrying parent’s partner to apply to the Family Court to adopt the child in order to achieve the desired legal status, though again this can become contentious depending on the approach taken by the sperm donor, who would be entitled in certain circumstances to be a party in the court proceedings.

Expert legal advice

If you have a query about the legal aspects of sperm donation and the legalities around parental responsibility after fertility treatment, or any other family law issue, please do not hesitate to contact us on 0161 969 3131 or fill in our contact form, and one of our team will be in touch.

Laws on Adoption and Parental Responsibility

March 24, 2021, By Slater Heelis

There are a number of circumstances in which adoption may be an option for people and families. From fertility options to new relationships, or perhaps looking after a young family member when they can’t live with their parents, there is a lot to consider.

In this blog, we have provided a condensed overview of the key considerations around the laws on adoption and parental responsibility. It is highly recommended that you receive specialist legal advice before entering into any of these agreements to ensure you are aware of the effect on you and others, understand your rights and the processes you would have to go through.

Adopting your partner’s child

Under current laws on adoption in the UK, those looking to adopt their partner’s child should contact their local council at least 3 months before applying to a court for an adoption order. The child must also have lived with both the parent and their partner for at least 6 months. An assessment will then be done of the couple and the child, similar to that of an adoption agency.

If the adoption order is approved, it will take away parental responsibility from the child’s other birth parent, or anyone else with parental responsibility for the child.

When the child is still in contact with their other parent

If you are married or in a civil partnership, you are able to enter a Parental Responsibility Agreement. Both of the birth parents (providing they have parental responsibility) and the step-parent must all be in agreement. If not agreed by everyone, you can apply to court for a Parental Responsibility Order.

More than two people can have Parental Responsibility for the child. This means that both parents will keep their responsibility even when a step-parent is granted it too.

With parental responsibility your role is to:

provide a home for the child
protect and maintain the child
discipline the child
choose and provide for the child’s education
agree to the child’s medical treatment
name the child and agreeing to any change of name
look after the child’s property

This parental responsibility automatically ends when the child turns 18.

Using a donor

If you give birth to the child, even using a donor egg, you are the legal birth parent. When using a sperm donor there are certain variables that will affect whether a non-birth parent will need to adopt the child, or if they are automatically named on the birth certificate. One key consideration is whether you conceive through a clinic licensed by the Human Fertilisation & Embryology Authority (HFEA). Let’s first explore:

Using an HFEA Licensed clinic for artificial insemination (IUI)

The birth mother is automatically a legal parent. If you are married or in a civil partnership before fertility treatment, whether that is with donated sperm or embryos, your partner will also automatically be the legal parent.

If you and your partner are not married or in a civil partnership, there are steps that can be taken to ensure you are both on the birth certificate. When using a licenced HFEA clinic, the couple can sign a parenthood election form prior to conception which will name the non-birth mother as a legal parent. Both of them will then have equal parental status when the child is born and will be automatically named on the birth certificate.

The donor has no obligation to any child born.

Using a non-HFEA licensed clinic or Home Insemination

In these circumstances, when the couple are not married or in a civil partnership, the donor is the legal father of any child born from their donation. As with any legal parent, they are financially liable, and so it is in their best interests to arrange for the second parent to adopt the child as soon as possible.

Under UK laws on adoption, an adoption order relinquishes parental responsibility of birth parents. The exception to this is when a stepparent applies for an adoption order, their partner can retain parental responsibility. The donor can therefore be relinquished of parental responsibility when the birth parent’s partner adopts the child. Once this is granted, the couple will both have full parental responsibility.

Surrogacy

Surrogacy itself is legal in the UK but is it against the law to pay somebody to be a surrogate, except for expenses.

Within a surrogacy agreement, a woman carries a child for another person or couple with the intention that the child will be handed over at birth to the commissioning person or couple, and raised as theirs.

There are some other key considerations to be mindful of when it comes to surrogacy:

The surrogate is the child’s legal parent at birth
If the surrogate is married or in a civil partnership, their spouse or civil partner will automatically be the second parent at birth, unless they do not give permission in advance
If the surrogate is unmarried, in most cases the intended father will be the legal father (assuming he is the biological father).
After the child is born, legal parenthood can be transferred to the commissioning person or couple by parental order or adoption
A surrogacy agreement cannot be enforced by the law, however it is helpful to have it in writing to ensure clear communication from the outset
If, upon birth, there is a disagreement about who should be the legal parents, the courts will make a decision based on the best interests of the child

Adoption and parental orders after surrogacy

To apply for a parental order, either you or your partner must be genetically linked to the child through sperm or egg donation. If, however, there is no genetic link, you must go down the adoption route to become the child’s legal guardian.

More detail on the specific requirements under the laws on adoption and parental orders after surrogacy can be found here.

Special Guardianship

The Family Courts can make a Special Guardianship Order to allow a child to live with someone other than their parents in the long-term.

A Special Guardianship Order enables the following:

Long-term placement for the child
The Special Guardian to be granted Parental Responsibility at a higher level than the parents, to enable day to day decisions to be made solely by them
The child can maintain links with birth parents if appropriate, as the parents retain parental responsibility
Provides security, stability and safety for the child
Entitlement to receive support, including financial, from the Local Authority

Who can apply to be a Special Guardian?

Relative of the child (not a parent), aged 18+, and the child has lived with them for 1+ year before the application
Someone who has the consent of everyone with parental responsibility;
Local Authority foster carer, and the child has lived with them for 1+ year before the application
The child has lived with them for 3 of the past 5 years
A child is in local authority care and the authority has consented to the application
In any other circumstances, permission can be granted by the Court for an application to be made

An alternative to Special Guardianship is adoption, in which the birth parents would lose parental responsibility and usually links with the child upon the adoption order being granted.

Contact us

There are a lot of considerations, whichever route you take towards adoption or parental responsibility, as well as the circumstances in which you are looking to adopt.

If you are considering adoption please contact our expert adoption lawyers, Mark Heptinstall or Eluned Roberts, in order to discuss further how they can advise and support you in navigating the laws on adoption and parental responsibility.

Call us on 0161 969 3131 or fill in our contact form and Mark or Eluned will be in touch.

We are Family: Home Insemination & Parental Rights

December 23, 2020, By Slater Heelis

Starting a family is an issue which many people consider during their lifetime. For some, it may happen very easily. For others, much more planning is needed and it may involve a medical procedure.

For many in the LGBT+ community, careful consideration must be given to the different options available to them – not least because of the legal implications. Using a licensed clinic would seem to be the safest option all round but it is costly and therefore not an option for some. Thus, intra-cervical insemination / home insemination may be the only way to have that much-wanted child.

You can find more information about ICI treatment and the different methods of fertility treatment on the LGBT Mummies Tribe website here.

It is essential that you are aware of the legal implications when proceeding with artificial insemination outside of a licensed clinic. Whilst the birth mother or parent will always be considered the legal parent of the child, the situation for their partner is far from straightforward.

My Partner and I are Married/in a Civil Partnership

Providing you have inseminated artificially and your spouse / civil partner consented to you being inseminated, your spouse / civil partner will be the child’s legal parent. If it is your husband, he will be the legal father; and if it is your wife / civil partner they will be the legal second parent.

It is imperative that if you are married or in a civil partnership at the time you conceive, your spouse/civil partner consents to the insemination and the insemination is undertaken artificially and not through sexual intercourse.

If you conceive through sexual intercourse with someone other than your spouse / civil partner, the biological father will be deemed to be the legal parent. In such circumstances, in order for your spouse / civil partner to be the legal parent, the biological father would have to consent to your spouse / civil partner adopting your child and thus agree to no longer being the child’s legal parent.

My Partner and I are not Married nor in a Civil Partnership

This is a little more complicated. Even if your partner consents to your insemination, if you are not married nor in a civil partnership at the time you conceive, the sperm donor will be deemed to be the child’s legal father – unless you became pregnant as a result of fertility treatment at a licensed clinic and you, and your partner completed the correct forms. In such circumstances your partner will be deemed the child’s legal parent. However, away from the licensed clinic, you would have to go through the adoption process for your partner to become the second legal parent.

Acquiring second legal parent status

If you are not married nor in a civil partnership at the time you conceive by artificial insemination and conception does not take place in a licensed clinic, your partner can acquire second legal parent status by obtaining an adoption order. The adoption order, once made, defines who the child’s legal parents are and grants your partner parental responsibility alongside you, which gives them the right to be consulted upon key decisions in your child’s life such as education, medical treatment etc.

It can be a lengthy process which would start with your partner notifying your local authority that they wish to adopt. This must be done at least 3 months before applying to the court for an adoption order.

The child must have lived with you both for at least 6 months (so your child cannot be adopted by your partner immediately upon birth) before applying for an adoption order. These time-frames should be borne in mind when seeking to adopt.

A social worker will carry out an adoption assessment and will provide a report to the court detailing their recommendations to assist the judge in making a final decision. Once granted, your partner will be your child’s legal parent with you and the rights of the donor will be extinguished. Your child will be issued with an adoption certificate naming you and your partner as their parents. This replaces the child’s birth certificate.

For more information on the adoption process, you may find this page on the government’s website helpful.

Another option is to obtain parental responsibility either by agreement (both biological parents would need to consent) or through a court order. However, obtaining parental responsibility for a child does not extinguish any rights of the donor but it would give your partner the rights and responsibilities to make day-to-day decisions for the child.

Donor Agreement

In all circumstances, outside of a licensed clinic, we would advise that a written donor agreement is entered into by you, your partner and the sperm donor. Although these agreements are not legally binding, they can be used as evidence in court if a dispute arose in the future.

A judge will consider the agreement in order to assess the intentions of the parties and determine what is considered to be in the best interests of the child. The agreement should clearly set out the donor’s involvement (or lack of) with the child and, crucially, ensures that all parties are in agreement from the outset.

How can we help?

If you would like to find out more about the legal implications of conceiving through home insemination, or if you have a dispute regarding parental responsibility, our Family law team are on hand to help.

Call us on 0161 969 3131, or fill in our contact form and we will be in touch.