A fertile ground for reform
By Hollie Orgee
With women increasingly choosing technology-aided methods of conception, Hollie Orgee examines whether our fertility laws are fit for purpose
Are the UK’s fertility laws regarding egg freezing, sperm donation and surrogacy still relevant for modern fertility choices? Despite the early predictions of a baby boom in 2021, the reality of the covid-19 pandemic is that it has had a dramatic impact on women looking to start a family.
Lockdowns, social restrictions and fundamental shifts in how we live, coupled with financial, health and employment concerns, mean we are more likely to see a baby bust this year.
In fact, according to a recent report from PwC, the annual birth rate is predicted to drop to just over 569,000, compared to 720,000 a decade ago.
For single women in their 30s and 40s, the ticking clock of fertility adds further worry. Recent research commissioned by Stowe found that six in 10 of the women surveyed were anxious about their chances of having a family due to covid-19.
The survey also revealed that over half of the women concerned are now considering technology-aided methods of conception that they would not have thought about before the public health emergency. The most popular option is egg freezing, followed by in vitro fertilisation (IVF), sperm donation and surrogacy.
Technology-assisted methods of conception have the potential to transform people’s lives – creating wonderful opportunities for people to have a family. However, many people considering this route are not aware of the complexities of the law surrounding fertility treatments in England and Wales.
The current rules around egg freezing and fertility treatment favour younger women, ignoring those who have chosen to start a family later in life.
This leads to the question of whether existing rules around the storage of eggs and fertility treatment are fit for purpose, and whether the law needs to catch up with societal changes, including the impact of covid-19.
With the current storage rules, gametes are destroyed after ten years (unless a medical reason can be shown for an extension) – while there is a government consultation currently in the works, this is a small and arguably well-overdue reconsideration of the current law.
Thirty-one years ago, when the act is that the Human Fertilisation and Embryology Act 1990? came into force, the technology was not as effective as it is now, meaning the quality of eggs frozen long term could not be guaranteed.
However, going further than that, the storage limits meant that ultimately the decisions about when women had a child were effectively removed from them, as they were forced to use or lose their frozen eggs.
The consultation goes a way to address this, looking at extending the storage of gametes, with a focus on reproductive choices for women. Some women may not wish to start a family in their 30s, and the law needs to change to provide more options.
While altruistic sperm donations often fly under the radar, it is important for people considering sperm donation (both prospective parents and donors) to understand the legal position before they embark upon their journey.
Conception at home
Most prospective donors and parents do not realise that the method of conception (either artificial insemination or intercourse) is crucially important from a legal perspective in the case of donation at home.
If the prospective parents are married or in a civil partnership, the deciding factor as to who is the second legal parent of the child (the first being the person who gives birth to the child) is decided based on the means of conception.
For example, if conception is via insemination, the donor will have no status as the legal father. If via intercourse, the donor does have status as the legal father. If the prospective parent is single when conception takes place at home, the sperm donor is the child’s legal father. You cannot opt out of this.
This is the case even if the donor is not named on the child’s birth certificate, which only affects the donor’s parental responsibility and not their legal parent status.
What does legal parenthood mean?
As a legal parent, the donor has a legal obligation to the child and can be required to support the child financially, even if this was not their intention at the time of conception.
Legal parenthood allows the holder to make applications to the court regarding arrangements for the child without requiring the court’s permission. However, it may be possible to extinguish this liability through adoption.
Conception through a licensed clinic
If the parties decide to donate through a licensed clinic, none of the above applies. The donor (if that is what the parties expressly acknowledge him as being through the clinic process) will not be a legal parent. unless it is agreed that he should be named as such.
Donation through a clinic simplifies matters, ensures treatment is safe, is regulated and shouldn’t leave anything open to interpretation, although there is a monetary cost.
A changing world
More and more couples are choosing to seek out an informal arrangement for sperm donation for personal reasons rather than going to a clinic to start their family. However, this means that there is a risk of the position of legal parenthood becoming complicated as a result of the current law.
It seems time for a review of the law to consider the different ways couples can have a baby through sperm donation and ensure the position is clear. This would help all parties make decisions with full knowledge of the situation.
At present, surrogacy in England and Wales can be an uncertain process for prospective parents.
Surrogacy arrangements are only legal if they are altruistic, meaning there can be no legally binding agreement. This uncertainty can create a stressful experience for prospective parents in what should be a joyful time, waiting for their baby’s arrival.
The increase in parents seeking out surrogates and parental order applications clearly demonstrates that this is an area requiring further consideration.
There have been some strides for reform. In 2019, the law changed to allow single applicants to apply for a parental order, paving the way for single parents to undertake surrogacy. But does this go far enough?
The current laws are driving prospective parents abroad, where the laws in those countries are more favourable, giving them greater certainty but creating other concerns such as obtaining a passport and immigration issues.
Additionally, regardless of the country’s arrangements where the surrogacy takes place, the parents will require a parental order here for their legal parenthood to be recognised.
A consultation on the current surrogacy laws ran from 6 June to 11 October 2019. However, the final report and recommendations for reform of the law and a draft bill are not expected until early 2022; and it remains to be seen whether the proposed reforms will go far enough.
With more people than ever relying on technology to help them start a family, it’s clear that the law needs to catch up – and quickly – given today’s modern families and fertility choices.
Hollie Orgee is a senior solicitor at Stowe Family Law stowefamilylaw.co.uk