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Embryology and parenthood

At CFLP, we pride ourselves on taking on challenging areas of law which fall within our remit as specialist family lawyers. From time to time we deal with interesting issues of law relating to non-traditional methods of creating families, whether it might be surrogacy, IVF or donor conception. The Human Fertilisation and Embryology Authority is the UK body which regulates treatment and research using eggs, sperm and human embryos. Our eyes were drawn to the consultation document it released on Monday 17 September, where it seeks views on whether new techniques in embryology should be used to enable couples where there is a significant risk of passing on certain inherited diseases to any children, to have embryos adapted to remove the risk.

Mitochondrial disease occurs where there are faults in genes because of problems with the sufferer’s DNA. The particularly problematic DNA is inherited from the mother. Around one in every 200 children born each year has some form of mitochondrial disease; some children have mild or no symptoms but others are severely affected and have a shortened life expectancy. The new techniques relate to using either a donated embryo or a donated egg, alongside the egg and sperm or embryo from the affected couple, to create an embryo that is unaffected by mitochondrial disease. The BBC website explains the process quite nicely (under the tabloidesque headline “’Three people one baby’ public consultation begins”).

The medical and ethical challenges of such a new approach are obvious, but the legal implications could also potentially be interesting where the resulting child would technically have biological connections to three or more parents. In the short term, there are significant safeguards already in place to restrict the ability of those donating embryos, eggs or sperm from interference in the life of any resulting child. However, it is certainly the case that advances in reproductive medicine have consistently challenged traditional notions of parenthood and offer opportunities for people to create family structures that would have been unthinkable even a generation ago. The law sometimes seems to struggle to keep up, although perhaps because of the importance of medical research to the UK economy, compared with other areas of family law successive governments have been more interested in regulating embryology and its effects. As a result, the law already understands that sometimes these days it takes a number of different people to make a baby.

Until fairly recently, same-sex couples needed to adopt or gain a residence order to have parental responsibility for any children they were raising together. However, under the Human Fertilisation and Embryology Act 2008, which came into effect at the beginning of April 2009, the law finally allowed two women who had embarked on a course of IVF together using donor sperm to be recorded on a child’s birth certificate as parents. There is no named “father”, although sometimes if the female parents choose a known sperm donor, this man may agree with them to be involved in the child’s upbringing. The courts have decided that it can be in the best interests of the child to have more than two parents: whilst it is generally accepted that it is good for a child to have two parents, it does not necessarily follow that the addition of a third will be disadvantageous. Although it is to an extent up to the adults involved to decide how they will raise the child, as with any other set of parents the court will step in to determine what is in the child’s best interests in the event of a dispute (for more details on the case of A v B and C (2011), see this article).

For biological reasons, ie that men are not generally able to give birth, a child cannot have two male parents on a birth certificate from the beginning. Two men seeking to have a child together may adopt or consider surrogacy (as indeed may any other couple). Again the law has struggled to keep up with the growth of surrogacy both in the UK and internationally, which has left many people in a situation where they may enter agreements without understanding the legal requirements and complexities. After surrogacy, the child’s intended parents require a parental order to reassign legal parenthood and parental responsibility from the surrogate mother, and her husband if married. This triggers the issue of a British birth certificate in the names of the intended parents, which can be in the names of two men, two women, one man and one woman, or a solo man or woman.

(As an aside, this recent article in the Guardian about whether a husband’s sperm is a marital asset also caught our attention.)

So parenthood is complex already in law. Although the complexity tends to come to light after the birth of the child, a clear plan before the birth can help to reduce problems later. The current HFEA consultation, which closes on 7 December, is really a medical/ethical one rather than a legal one, but it may still be possible that at some point unexpected legal issues may come into play that society cannot currently contemplate. Advances in the science of childbearing are moving so quickly that creative legal thinkers may find plenty of scope for using their talents to shape debate in the months and years ahead. Do give us a call or leave a comment below if you’d like to discuss anything in this blog.


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