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The rise of 'non-traditional' parenthood – the family law implications

Posted on 9 August 2022

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For many, the timing of and the way they choose to have a family has shifted, compared to previous generations. Many factors are at play in creating these shifts – including rising costs of living; the balancing act of work and home life; an arguably more complex, modern dating world; more progressive laws recognising LGBTQ+ rights; advances in fertility treatments; and access to contraception. Today people in the UK have more options (from women freezing their eggs to couples accessing IVF), and more control when considering their route to parenthood – which is positive progress. However, the legal considerations that some of these options give rise to are important to bear in mind.

Looking at four "modern" options for family building:

Surrogacy

Surrogacy is becoming an increasingly popular option for parenthood, allowing many couples and individuals who otherwise would not be able to do so to build families. It involves an arrangement where a woman – the surrogate – carries and gives birth to a child for another person or couple. Many myths surround surrogacy, especially in the UK, but as more women are starting to freeze their eggs in their early thirties, it seems likely that the growth in surrogacy will continue as women who have frozen their eggs later seek to use these within a surrogacy arrangement; as well as it being a well-trodden path to parenthood for same-sex couples, couples whose fertility is affected and single people may also find this arrangement suits their needs.

While commercial surrogacy is illegal in the UK, it is possible to locate a surrogate in the UK or enter into a surrogacy arrangement abroad. Both domestic and international surrogacy require expert support as there are legal implications that intended parents may not always be aware of – especially when the focus is, naturally, on the joy of welcoming a child. For example, in the UK the surrogate will be deemed the child's legal mother at birth, regardless of any genetic link to the child. This means that the intended parents need to make an application for a Parental Order to become the legal parents of the child. Where an international surrogacy arrangement is entered into, there can be complex immigration issues involved in bringing the baby back to the UK.

The Law Commission has been considering surrogacy reform, and its final report is expected in Autumn 2022. It is hoped that the legislation around surrogacy will be adjusted to enable more people to make use of this avenue, and that this has a knock-on impact on support in the medical and professional spheres.

Donor conception

Donor conception means having a child using donated sperm, eggs or embryos which may come from donors in the UK or abroad. This is a useful option for couples and single people – for example, older women who are facing diminishing numbers and/or quality of eggs may look to a donor egg to overcome these issues, while same-sex couples/single people may make use of donated sperm, eggs or embryos.

The Human Fertilisation and Embryology Authority (HFEA) regulates UK donor conception and maintains a list of licenced fertility clinics in the UK, as well as a register of information about treatment at such clinics. Fertility clinics match donors and recipients and also provide the fertility treatment. There are also various donor-matching websites in the UK offering introduction services – although it is important that any such service has an HFEA licence and complies with the HFEA's Code of Practice.

Donor conception law regarding legal parenthood and parental responsibility (two distinct things) can also be complex depending on the circumstances. The woman who gives birth is legally the child's mother, but if she is married or in a civil partnership then her spouse or civil partner will not be the child’s other legal parent if there was lack of consent to the fertility treatment.

Like many other routes to parenthood, significant time off work may be necessary during the process before and after the birth. Many employers have limited leave policies other than 'traditional' maternity and adoption leave, but slowly companies are waking up to the need for more inclusive policies which support modern family-building.

Adoption

Adoption is a rewarding opportunity to build a family. Legal parenthood is transferred from the child's birth parents to the adoptive parents, as well as bestowing parental responsibility on them. Unfortunately, adoption rates in the UK are falling and this option is often seen as challenging – with adoptive parents being required to go through an understandably rigorous process. Adoptive parents may wish to consider the extra need for support and care in integrating the adopted child into the family if they have other children already, or if the adopted child is likely to need specific support.

However, with a new cross-party report calling for reform and greater awareness being brought to issues of support for the adoptive family, careful matching of the parents to the child and the need for a multi-disciplinary approach there are hopes this becomes a more viable and popular route for family-building in the future – especially alongside the uptake, albeit a slow one, of adoption leave rights in workplaces.

Platonic co-parenting

Platonic co-parenting or parenting partnerships are on the rise. A number of co-parenting websites have been established in recent years – with tens of thousands of members – matching applicants wanting to have children together without having or being in a romantic relationship. This may be an attractive option for single people who have decided that they wish to have a child without necessarily having a partner.

Issues of legal parenthood and parental responsibility are key and depend on the circumstances of conception and birth. For example, if the co-parents undertook artificial insemination, the birth mother will be considered the child's legal mother and have parental responsibility – if she is married or in a civil partnership at the time of conception, her spouse or civil partner is considered the child’s second legal parent and will automatically have parental responsibility for the child (unless there is proof they did not consent to the conception). An unmarried father of the child would need to be registered on the child's birth certificate to acquire parental responsibility, and therefore be able to make important decisions about education, religion, names and medical care.

Like all the other routes there are many moving parts – careful consideration and advice taken on key points in the process is important, including on the method of conception; the need for health and fertility checks; what each co-parent's values and expectations are; and what kind of relationship the co-parents will have. A co-parenting agreement can be entered into covering many elements (including how the child will divide their time between their parents) and although not legally binding in England and Wales, such an agreement can inform and help shape discussions and arrangements between those involved, as well as lessen the chance of future disputes.

Conclusion

For people approaching parenthood later in life, or those whose fertility is affected and therefore who may take longer to become parents, the good news is that there are more avenues to family-building than ever before. However, these paths are not always clear from a practical and legal perspective. We always advise anyone considering more 'non-traditional' routes to parenthood to consult a lawyer trained in family law, as well as seek emotional support from a trained therapist – contact our Surrogacy and Modern Families service which offers a holistic, and client-focussed approach to family-building with a wealth of experience in these complex, emotive and developing areas of law.

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