Although it is rare for a couple to have a child together, the two can sometimes happen. One spouse or partner may feel the marriage or civil partnership is over and they no longer want children. The other spouse can still be determined to start a family. This is where IVF can be used as an alternative to natural conception.
The Human Fertilisation and Embryology Act (2008) (HFEA), defines a mother as a woman who has or is currently carrying a child due to the placement in her of embryos or sperm and eggs. In other words, a heterosexual couple who have a child via IVF is considered a legal parent even though the egg was donated. The situation with fatherhood is not quite as straightforward. The HFEA states that a man who is either married or civil partnered with the mother at the time the embryo is placed in her, or sperm or eggs are being implanted, is considered the father unless he consents to it. If the father is not married, he can be considered the legal father of the child if certain conditions are met. A similar scenario applies to same-sex couples.
When it comes to surrogacy arrangements made via licensed clinics and legal parenthood, consent to IVF, etc is crucial. However, informal arrangements between individuals (DIY) are subject to different rules.
If a married couple becomes pregnant with donor embryos in a DIY informal arrangement, then the donor is not considered a legal parent. However, if a couple of the same sex become pregnant using donor sperm for a DIY informal arrangement, the donor can be considered a legal parent.
Is consent to treatment sufficient?
Each couple must consent to IVF treatment to be considered the legal parent of an IVF-conceived child. Consent is not sufficient. Recent cases have demonstrated that insufficient processing of the Human Fertilization and Embryology Authority’s standardized consent forms and different protocols adopted by UK licensed clinics, as well as clerical errors, have all led to situations where parents are uncertain after IVF, which has resulted in unexpected litigation.
It is even more difficult if married couples or civil partnerships have an established relationship with a clinic. If the birth mother’s a spouse/civil partner wants to withdraw their consent (for instance, where the relationship is broken down), the child can be conceived within the time frame before formal consent is withdrawn. This can cause further complications because the spouse or civil parent is automatically considered to be the legal parent of the child unless it is proven that they didn’t consent to or know about the IVF procedure.
Legally, consent will be determined according to the following factors.
* Was the IVF undertaken jointly?
* Did both the parents intend to become legal parents of the child from the beginning of the treatment?
* Did both parents believe that the child was theirs from the moment they became pregnant? And did they continue to believe this belief after the birth of the baby?
In any case of ‘your word against theirs,’ it is difficult to prove knowledge, intent, and belief of consent. Written evidence, such as an email explaining your feelings and intentions to your spouse/civil partner, is important but not always reliable. Emails, letters, or texts can be misplaced or left unread.
Financial claims and parenthood
Now, imagine a situation in which treatment succeeds and the child is born to civil or married parents. If consent is not possible, the birth mother’s a spouse/civil partner cannot be considered the legal parent. This spouse or civil partner will not be considered a biological parent. The CMS (Child Maintenance Service), therefore, would not be applicable.
They could still be considered responsible for financial support as a spouse if they treated the child as a child of the family, maintained close relationships, and adequately took responsibility for the child’s care, even though they knew the child wasn’t theirs. This could lead to financial claims being made on behalf of the child. This is a significant step from withholding consent for treatment. However, it is not uncommon to find an ongoing relationship.
Clear communication is crucial if you’re about to best divorce lawyer in surrey, or are going through a divorce, and you don’t want to start a family. You should also have documentation of your communications. It can be difficult to communicate with your spouse in an emotionally charged setting. You should also communicate the situation quickly and clearly to the IVF clinic, as well as confirm your decision in writing. Honesty and clarity are the best way to move forward.
You will have more control over your financial future if you have all your legal ducks in order starting at the moment you withdraw consent to treatment.
It is complicated, but it is also parenthood.