Why fertility treatments and surrogacy need early legal advice

In today’s society, family structures are increasingly diverse and there are a variety of routes to parenthood. This presents complex legal questions regarding legal parenthood, parental rights and responsibilities, and the welfare and rights of the child. Early legal advice is essential to safeguard the intended legal relationships, prevent future disputes, and ensure that all parties and the child are properly protected throughout the process leading to the birth of the child, and beyond.

Fertility Law and Surrogacy Law are complex. There are different legal processes depending on factors such as whether you are married or in a civil partnership, a same-sex couple, a single parent, using a donor or a surrogate. This complexity can easily lead to misunderstandings and errors, which can have significant and long-term implications for parties and the child. It is essential to seek specialist legal advice before commencing any process.

Early advice and planning can also deal with important child arrangements matters such as:

• Where and with whom the child will live.
• With whom the child will have contact and how.
• Aspects of the child’s upbringing such as schooling and faith.
• Financial support for the child.

This can minimise uncertainty and the risk of future disputes. It is important to understand the long-term impact of the creation of legal relationships, which can remain even in the circumstances of a family breakdown. 

It is also advisable to think early in the process about Wills and Estate Planning. A Will can cover important matters such as:

• Guardianship for the child in the event of your death.
• Provision for the child, such as whether that’s through a trust and, if so, what type of trust.
• Who the trustees of the trust should be.
• If you have any embryos / eggs / sperm stored, what happens to them on your death.
• If you have donated your eggs or sperm, whether you want any children born from those donations to have access over and above their legal entitlement to information about you and, if so, how that information will be provided.

Due to the complexities of creating legal parent-child relationships, the corollary is that there can be complications with matters which arise upon the death or incapacity of a party.

For example, in a surrogacy arrangement the child is treated as the surrogate’s child under the Law until a Parental Order or Adoption Order is made by the Court transferring legal parenthood to the intended parent. From the surrogate’s position this means that the child (or their guardian, if the surrogate dies before the Parental Order but while the child is under 18) would benefit under the intestacy rules and/or would have standing to bring a claim against the surrogate’s estate (or that of their married or civil partner) for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975. 

About Amy Lane: A Private Client Partner and specialises in the legal complexities surrounding families created through assisted conception and surrogacy. She has more than a decade of experience in complex estate and succession planning, Amy advises intended parents, donors and wider family members on how to protect their legal, financial and parental interests through properly regulated arrangements. Amy is committed to raising awareness of the role that formal estate planning plays for modern families formed through fertility treatment or surrogacy, ensuring clarity around legal parenthood, guardianship, and inheritance rights.

About Lucina Troy: A specialist Modern Families and Children Lawyer. In the Modern Families space Lucina advises individuals who want to create a family via an alternative path to parenthood, helping them secure, protect, and define the intended legal parent-child relationships. In the Children Law space Lucina undertakes a wide variety of work, including child arrangements and matters of parental responsibility, paternity testing, child maintenance and financial provision, child relocation, child abduction, injunctions and protective orders, disclosure orders, recognition and enforcement of foreign orders, breaches of orders and enforcement, and appeals. Lucina also speaks and provides workshops and seminars to Schools and Businesses, raising awareness and understanding about Modern Families and Children Law matters in schools and in the workplace.

Together, using their combined expertise across the sector, Amy and Lucina are developing their own leading fertility and surrogacy practice at gunnercooke. For more information, or if you need legal advice, you can contact Amy Lane or Lucina Troy directly.