If you are starting a family it can be incredibly exciting, but also a very stressful time. If you are an LGBT couple or have fertility issues, taking a more progressive route to create your family can also involve many legal implications. Depending on which route you take, our specialist team of surrogacy, fertility and adoption solicitors can advise you on the necessary legalities concerning the following options:
- Surrogacy arrangements – both domestic and international
- Donor Agreements
- Co-parenting, including co-parenting agreements
Whatever your circumstances, our family law solicitors are here to help remove the additional stress and guide you every step of the way when creating your new family.
How can our adoption and surrogacy solicitors help?
Our specialist family law team is fully experienced in the complexities of international fertility laws as well as those at home. So if you have the added pressure of living abroad or needing assistance in this area, we can help you understand all aspects, as well as ensuring your new family is legally protected. Our extensive experience in dealing with international adoption, surrogacy and fertility issues means that whatever your circumstances, we are here to help remove the additional stress and guide you every step of the way when creating your new family. Here are just some of the ways we can help you:
- Advice on the acquisition of legal rights following the birth of a donor-conceived child
- International surrogacy arrangements
- Co-parenting agreements
- Financial provision for children
- Disputes involving children
- As members of a global alliance of lawyers and accountants – MSI – we can access experts in another country quickly and efficiently should their assistance be needed also. This means you can receive the tailored advice you need involving fertility and international law.
If you are creating a family through the process of adoption it can be challenging, which is why our specialist team is here to help you navigate the legal complexities. We are experienced in helping families adopt in both the UK and from other countries. Our expertise of our adoption solicitors ensures the process is as stress-free and streamlined as possible.
Adoption is the assumption of full legal and parental responsibility for a child; it is supported by an adoption order, granted by a court. An adoption order severs all legal ties with the birth family and transfers parental rights to you as the new adoptive family. The child becomes a full member of your adoptive family, can take your surname and assumes the same rights and privileges as if they had been born to your family, including the right of inheritance. Many children maintain contact with some members of their birth family. This may be indirect contact, such as sending letters or photographs, visits to a brother or sister who live elsewhere or some direct contact with other members of the birth family. In every decision made about whether contact should continue, the child’s safety and wellbeing are of paramount importance. Contact and your views about it will be a part of the discussion during the preparation, assessment and matching process. Our family solicitors are experienced in this process and can guide you every step of the way, ensuring you are aware of your adoption legal rights.
You’ll find more information on adoption and support throughout the process on the following websites:
Special Guardianship is an alternative if adoption isn’t the most appropriate solution for your family. It is a legal option where the child lives with you as part of your new family, but the birth parents retain parental responsibility. However, their parental responsibility is limited and shouldn’t interfere with the day to day activities of your family.
Special Guardianship can be an ideal solution for children who can’t live with their birth families, but still need a secure and loving home during their childhood and beyond without losing the legal link to their birth family.
Are you considering adopting a child from another country besides the UK or are you resident in another country and considering adopting a child from the UK? This is known as intercountry adoption and is governed by both the laws of the country in which the child lives and the country in which you, the adoptive parents, live.
UK laws for adoption apply to all children brought to the UK to prospective adopters who are residents of the UK. This applies regardless of their nationality. UK law requires an adoption agency to carry out an initial assessment to check that the prospective adopters are suitable to adopt. Depending on the type of adoption, there are very rigid steps and requirements that must be adhered to by the prospective adopters. Failure to comply could be seen as a criminal offence so it is important to take specialist advice from adoption solicitors.
There are three main types of intercountry adoption in the UK:
Hague Convention Adoptions
These are adoptions to or from the UK with a county in which the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the Hague Convention) is in force. The distinct process is prescribed by the Hague Convention. A Hague Convention adoption that has taken place overseas is recognised in the UK and there is no need to adopt the child again in the UK.
Designated List Adoptions
Adoptions made on or after 3 January 2014 are automatically recognised in the UK if it took place in a country listed on The Adoption (Recognition of Overseas Adoptions) Order 2013. Adoptions made before 3 January 2014 in any country listed on The Adoption (Designation of Overseas Adoptions) Order 1973 and the Adoption (Designation of Overseas Adoptions) (Variation) Order 1993 are also recognised in UK law and so there is no need to readopt the child in the UK for the adoption to be recognised. Countries on the designated list can be found at the Department for Education’s website.
If the child you are adopting has not already been adopted overseas in a country recognised by the UK then you will need to get an adoption order from the UK Court.
There are two distinct intercountry adoption processes under UK law: the Hague Convention process and the non-Hague Convention process. The route you take will depend on whether the country involved is also a party to the Hague Convention.
Our specialist team of adoption lawyers can help you navigate the complex legal requirements of both The Hague Convention process and the non-Hague Convention process. As a member of MSI Global Alliance of lawyers and accountants, we have access to adoption lawyers in many countries and our extensive experience of working with the Department for Education will also ensure your adoption order is obtained as smoothly as possible.
As surrogacy laws vary from country to country, it is essential to ensure you are fully aware of all the necessary legalities concerning the process abroad.
Our surrogacy solicitors have extensive knowledge and experience concerning the intricacies of international surrogacy law and are familiar with the various types of surrogacy contracts and agreements entered in different countries. From the various US states to Eastern Europe and India, our expert surrogacy legal advice will help you navigate the complexities of travelling to different parts of the world to locate a suitable surrogate parent. What you should be aware of:
- If, as a UK couple, you are considering conceiving with a foreign surrogate, you will need to take care over conflicts of law on parenthood and the rule against paying more than reasonable expenses. Some countries allow the intended parents to acquire parenthood status automatically, either through a foreign court process (such as a Californian pre-birth order) or simply by allowing them to be named on the birth certificate (as in India). However, if you, as the intended parents, are domiciled here, English law will apply to you – which means that you may not be regarded as the child’s legal parents (including for the purposes of entry clearance and citizenship, which can prevent you bringing your child home).
- If, as a non-UK couple, you are considering conceiving with a UK surrogate, you will need to take care over the requirement that at least one of you is domiciled in the UK. If neither of you, as intended parents, is domiciled in the UK, the court will not have the power to grant you a parental order. This means that it will be difficult for you to secure your status as the child’s parents and to take your child out of the UK.
- Seeking immigration clearance from the UK Border Agency to bring your surrogate child into the UK following the birth can be complicated. Many people are unaware that foreign country’s laws are not binding in England. You cannot assume that because you are the legal parents of your child abroad, that you are therefore the legal parents of your child in England. Unfortunately, this is not the case and only an English Court Order can resolve the situation.
- All international cases are currently being dealt with by the High Court in England, to ensure only High Court judges can authorise commercial surrogacy expenses. High Court proceedings can appear overwhelming, but our surrogacy solicitors are here to help, offer legal advice and simplify the process of international surrogacy.
If you are considering assisted conception, you are not alone as it is becoming increasingly common and it may enable you to create a family like it has for thousands of people who are unable to conceive through conventional methods. Our specialist fertility solicitors are fully experienced in the complexities of fertility law, both in the UK and abroad, and can help you understand all aspects, as well as ensuring your new family is legally protected. Here are just some of the ways we can help you:
- Advise you on the acquisition of legal rights following the birth of your donor-conceived child
- International surrogacy arrangements
- Drafting a co-parenting agreement
- Financial provision for your children
- Disputes involving your children
Whether you require assistance before conception or are involved in a complex dispute, our fertility lawyers can offer support and advice tailored to your particular circumstances and situation.
Our specialist team can advise you if you are a parent, co-parent or donor, whether you are a heterosexual couple, single man or woman or a gay or lesbian couple, on the complexities of donor conception. If you are contemplating conception with donor sperm or eggs, we can help with all the legal aspects to ensure you are legally protected and if you are involved in a dispute, we can advise and support you too.
Our team has also provided invaluable legal facts on UK fertility law to Co-ParentMatch.com – a social networking site for people who want to meet either a co-parent, sperm donor or sperm recipient.
If you are donating sperm it’s essential to consider the future consequences to both you and your family in doing so and to also consider the legal and emotional consequences. It is also important to remember that it is a criminal offence in the UK to donate sperm for commercial gain.
- Unknown donor at a licensed clinic:
You should also be aware that if you choose to donate your sperm at a Human Fertilisation and Embryology Authority (HFEA) licensed clinic, any children born using your sperm will not be considered your legal children. Despite a genetic link to the child/children, you will have no parental rights or responsibilities towards them. However, the child conceived using your sperm would have a right to access information about you.
- Donations before 1 April 2005:
If you became a donor before 1 April 2005 then the child is entitled to find out non-identifying information about you. This could include details such as ethnicity, hair colour and occupation.
- Donations after 1 April 2005:
If you became a donor after 1 April 2005 (or choose to re-register as an identifiable donor), then if the child is 18 years of age they are entitled to identifying information about you. This information includes your name and address so that the child can get in touch with you.
- Since 1 October 2009:
Since 1 October 2009, you can find out information about children conceived using your sperm. You cannot obtain identifying information about the children, but you can find out if any children have been conceived using your sperm, whether the children are boys or girls and the year they were born.
If you wish to donate sperm as a known donor, you can do this either at a clinic or at home. You should be aware that donating sperm as a known donor is not as simple as donating as an unknown donor. Your role as a legal father is not always excluded and will depend upon who the sperm is being donated to and where. You are not considered the legal father if you donate to:
- A married couple if the couple conceive either at a licensed clinic or at home by artificial means;
- An unmarried couple if the couple conceive at a licensed clinic and sign the relevant HFEA parenthood forms;
- A lesbian couple in a civil partnership providing conception takes place after 6 April 2009 and in either a licensed clinic or at home by artificial means; or
- A lesbian couple not in a civil partnership if the couple conceives after 6 April 2009, in a licensed clinic and both mothers sign the relevant HFEA parenthood forms.
In all other circumstances, you will be considered the legal father and will have all the rights and responsibilities associated with being a father. This means that you could be pursued for a financial contribution to your child’s upbringing.
If you want to be the legal father and play an active role in your child’s life, we recommend that you get legal advice on entering into a parenting agreement and read the co-parenting section of our website.
If you don’t want to be considered the legal father but the automatic position is that you would be, then you could have your legal fatherhood status extinguished if the intended parents apply to adopt the child.
Whatever your intentions, we can help you by drafting a sperm donor agreement regarding the use of your sperm and outline your fatherhood position before donating.
Sperm donor agreement
A sperm donor agreement is an agreement between the donor and the recipient outlining how the sperm is to be used. In most circumstances, it is designed to protect the donor from any adverse financial consequences and parental responsibilities and vests full parental decision making in the recipient. However, it is a bespoke document and can be prepared in accordance with your wishes.
Preparing a sperm donor agreement gives you the opportunity to consider all the issues that donating sperm as a known donor can create. We recommend that you consider all of the issues at the start to avoid any potential disputes later. The following are some of the issues to consider and include in the agreement:
- Whether the donor will be reimbursed for any expenses
- Who will be named on the birth certificate
- What legal applications will be made after the birth, e.g. adoption orders
- Financial responsibility for the child
- Provision for future donations to provide for future siblings
- Whether the child should have the right to contact the donor
- Whether the donor has the right to contact the child
- What happens to the child if the intended parents die
- You can also include other specific issues in the agreement.
As sperm donor agreements are not legally binding in the UK, any dispute involving a child requires that the court consider the best interests of the child. However, if all parties take independent legal advice before entering into the sperm donor agreement the court will give a great deal of weight to the agreement.
We advise that you seek legal advice before donating sperm, especially if you are donating as a known donor. Our specialist team of fertility lawyers are on hand to help you navigate the complexities of donor conception law.
If you are considering co-parenting, then our specialist team can advise and support you to ensure your new family is legally protected.
Co-parenting refers to the increasingly common arrangement where a lesbian couple joins forces with a gay couple to start a family. Usually, the sperm of one of the gay men is used to impregnate one of the lesbian women and all four parents often play an active role in the child’s life. But the co-parenting arrangement can also be one man and two women, one woman and two men or a single man and a single woman. There are no fixed arrangements for co-parenting.
Whatever your particular circumstances and situation, we advise that a co-parenting agreement is drawn up to protect all parties involved. Preparing a co-parenting agreement gives you an ideal opportunity to consider all the issues that a co-parenting arrangement can create. It is essential to consider all of the issues at the start to avoid any potential disputes later. The following are some of the issues to consider and include in the agreement:
- Who will be named on the birth certificate
- What legal applications will be made after the birth, e.g. parental responsibility, child arrangement orders, adoption
- Who your child will live with
- When your child will have contact with the other parent(s)
- Financial responsibility for your child
- Decision-making during the pregnancy
- Decision making once your child is born
- Provision for future siblings
- What happens if your relationships break down
Co-parenting agreements are entirely bespoke to your situation and so can include any other specific issues you would like. They are not legally binding and any dispute involving your child requires that the court consider the best interests of the child. However, if you all take independent legal advice before entering into the parenting agreement the court will give a great deal of weight to the agreement. Entering into a co-parenting agreement also reduces the risk of a dispute arising later.