Guidance Note: Fertility cases

This Guidance was reviewed in June 2024. The law or procedure may have changed since that time and members should check the up-to-date position.

The nature of the advice and the nature of the issues in relation to fertility can differ from that which is usually encountered by family law specialists, the issues relating more specifically to whether or not someone is a legal parent of a child rather than what their parental rights are. Given the importance of the legal framework in fertility cases it is an area where the code of practice should be at the forefront.

The main area of fertility law upon which members will be asked to advise is likely to be in relation to legal parenthood following assisted reproduction, particularly using donor gametes.

Lawyers may be asked to advise before a child is conceived, particularly where it is proposed that the child be conceived outside of a licensed fertility clinic. They may also be asked to advise where there is a dispute following the child’s conception. There have been a number of cases before the Court where couples have sought declarations of parentage following notifications from fertility clinics that there are anomalies in the paperwork.

When dealing with these cases, which deal with the creation of families, in particular we must consider the code and particularly:

• Support and encourage families to put the best interests of any children first;
• Help clients to understand and manage the potential emotional consequences of decisions;
• Inform clients of the available options e.g. counselling, family therapy, round table negotiations, mediation, collaborative law and court proceedings.

Those accessing treatment in a fertility clinic licensed by the Human Fertilisation and Embryology Authority will have access to counselling through that clinic and it is important to make sure that clients are aware that these services could be available. Where donor gametes are used, both the woman and her partner must be given adequate information and offered counselling.

There are different rules about parenthood dependent upon the woman’s marital or civil partnership status and whether the treatment takes place in a licensed fertility clinic or an informal basis. It is of vital importance therefore that the specific circumstances of each family are established before advice is provided.

In all cases the woman who is carrying or has carried a child or children as a result of placing in her of an embryo or of sperm and eggs, is to be treated as the mother of the child as per the Human Fertilisation and Embryology Act (HFEA) 2008 s33(1).

A man is not to be treated as the father of a child if he has given the correct consent to the use of his gametes for the purposes of treatment services or non-medical fertility services and his sperm is so used (HFEA 2008 s41). This would apply to sperm donors.

Since 1 April 2005 a child conceived using gametes or embryos donated via a licensed fertility clinic has the right, from the age of 18, to request identifying information about their donor, such as their name and last known address. Donors can find out generic information about any children that have been conceived through their donations, but not details of the child’s identity. Siblings of donor conceived children can opt to share and receive identity details with their genetically related donor conceived siblings.

A woman who is married to a man at the time of treatment

If at the time of the placing in her of an embryo or of the sperm and eggs or of her artificial insemination the woman is married to a man then the husband is to be treated as the father of the child unless it is shown that he did not consent to the treatment (HFEA 2008 s35).

There is no requirement for the treatment to take place in a licensed fertility clinic. There is no requirement for the husband to consent to treatment in writing.

A woman who is married to a woman or in a civil partnership at the time of treatment

If at the time of the placing in her of an embryo, or of the sperm and eggs or of her artificial insemination, the woman is married to or in a civil partnership with a woman then the other party to the marriage or civil partnership is to be treated as the parent of the child unless it is shown that she did not consent to the treatment (HFEA 2008 s42).

There is no requirement for the treatment to take place in a licensed fertility clinic. There is no requirement for the other party to the marriage or civil partnership to consent to treatment in writing.

If no spouse or civil partner is to be treated as a legal parent then another person (P) may be treated as a legal parent.

Treatment provided to a woman where agreed fatherhood conditions apply

This is only applicable in the course of treatment services provided in the United Kingdom by a person to whom a licence applies (ie, in a licensed fertility clinic). If at the time of this treatment the agreed fatherhood conditions are satisfied then the man (“P”) is to be treated as the father of the child (HFEA 2008 s36).

In order to satisfy the agreed fatherhood conditions, P must have given the person responsible (at the licensed fertility clinic) a notice that he consents to being treated as the father of the any child resulting from treatment provided to the woman (“W”) under the licence.  Similarly, W must have given the person responsible a notice saying that she consents to P being so treated as the father. The notices must be in writing and signed. There are further conditions and requirements that must be complied with in order that P can then be treated as father of the child (HFEA 2008 s37).

Treatment provided to a woman where agreed female parenthood conditions apply

This is only applicable in the course of treatment services provided in the United Kingdom by a person to whom a licence applies (HFEA 2008 s43(a)). If at the time of the treatment the agreed female parenthood provisions are satisfied in relation to another woman (“P”), P is to be treated as a parent of the child (HFEA 2008 s43).

In order to satisfy the agreed female parenthood conditions, P must have given notice to the person responsible that she consents to being treated as a parent of any child resulting from treatment provided to the woman  (“W”) under the licence. W must give the person responsible notice that she consents to P being so treated. The notices must be in writing and signed.  There are further conditions and requirements that must be complied with in order that P can be treated as a parent of the child (HFEA 2008 s44).

Declaration of parentage

The Court can make a declaration of parentage pursuant to section 55A of the Family Law Act 1986. An Application is made using a C63 Application form. Such applications are usually made by individuals biologically related to the child/ren in question but where their status of legal parent was not confirmed at birth.

Practical considerations

It is vital that prior to giving advice, the member familiarises themselves with the terms of the HFEA 2008.

It is also vital that the specific circumstances of the case are clarified as early as possible as the law differs significantly depending on each set of circumstances.

Members should also be mindful that this is an area of law where often the parents or potential parents are not in dispute and their advice and approach should be tailored accordingly.

Members should also consider whether or not there are any issues of surrogacy and whether or not the Surrogacy Arrangements Act 1985 applies.

There is a separate Resolution guidance note in relation to surrogacy.