HM Insights

The kids are alright?

As seen in the Journal of the Law Society of Scotland Online - August 2019 

With more methods of creating a family, new situations are arising in which child welfare issues have to be considered. But is the law coping? The author believes a more joined-up approach is needed

frozen human egg - modern families and creating families in Scotland.jpg

Scientific advances in assisted reproduction, and changes in social norms, have expanded the field of choices available for clients wishing to create a family. Adoption, surrogacy, assisted conception and donor conception are viable and available methods of creating an often much longed-for family. Modern families in all their possible permutations do, however, give rise to increasingly complex conundrums for policymakers and lawyers. Is our existing legal framework fit for purpose? Are family and child law practitioners ready? 

In her recent article, “Is the UK Fertility Sector Facing a Tipping Point?” (BioNews 1005, 8 July 2019), the current chair of the Human Fertilisation & Embryology Authority, Sally Cheshire, discusses the key issues facing what she terms the “fertility sector”. The HFEA is undertaking a period of consultation on its strategy for 2020-23 to ensure that its work is – and will continue to be – fit for purpose. The consultation will encompass various issues within the field of assisted conception, including consent, gamete storage, the lifting of donor anonymity and surrogacy law. 

Cheshire expresses the view that the Human Fertilisation and Embryology Act 1990 provides a legal framework based on extensive debate which largely stands the test of time. How does it relate to family law in Scotland? How will any changes made to the Act post-consultation potentially alter the way that we practise?

Emerging issues

Potential issues are many and varied. One of the specific issues highlighted in Cheshire’s article is that the HFEA “can only regulate treatment in a licensed clinic, not online or private arrangements in which parental rights and responsibilities can be unclear and the welfare of children born may be disregarded”. 

It is this particular issue that I wish to explore in this article. This is only one of a number of legal conundrums which have arisen in practice over the course of the last year or so. Issues around methods of donor conception and the law around parental rights and responsibilities and child welfare are also cropping up with increasing regularity in the Scottish courts. Is our current legal framework sufficient to safeguard the welfare of children born as a result of new methods of family creation?

There are presently a number of consultations underway in Scotland, including but not restricted to consideration of surrogacy law, the rights of former cohabitees, the rights of the child, and the provisions of the Children (Scotland) Act 1995. None of the consultations specifically invites consideration of the child welfare-related issues specific to methods of family creation. 

Parental rights and responsibilities

We are all familiar with the terms of ss 1 and 2 of the Children (Scotland) Act 1995, which set out who has parental rights and responsibilities in relation to a child, and what those rights and responsibilities are. Nowhere in the Act do we see provision for parental rights and responsibilities relative to children conceived within what I reluctantly term “alternative” family structures. Nowhere in the Act do we find provisions relating to donor-conceived children. Practitioners working within the existing framework may find themselves advising on the basis of assumption, rather than certainty. 

Archie’s case

Two women wish to create a family unit in which they have a child and raise that child together. Biology dictates that it is necessary for that couple to conceive via a sperm donor. They carefully decide together which partner will carry the child. They base that decision on consideration of their respective ages and general health. They cannot afford to consult with or engage the services of a registered fertility clinic. They cannot identify a male friend who may be able to assist them. They manage to source a donor online. No money changes hands, the donor considering that he is engaged in an altruistic act. His sole condition of donating is that his identity is not known to the couple, any third party, or any child born as a result of the donation. The carrying partner successfully conceives. Archie (not his real name) is born. Archie grows up with two mums. He considers both to be his parents. He is a happy, healthy little boy. He does not know who his biological or genetic father is. Archie’s parents separate. A dispute arises between his parents as to whether the non-resident parent ought to have contact. The resident parent seeks to rely on the fact that, as a matter of law, the non-resident parent does not have parental rights and responsibilities and is therefore unable competently to seek an order for contact in terms of s 11 of the 1995 Act. The non-resident parent invites the court to award her parental rights and responsibilities and to make a contact order. The resident parent turns to the provisions of the 1990 Act. The non-resident parent argues that she has parental rights and responsibilities in respect of Archie because her name appears on his birth certificate.

The resident parent argues that Archie was conceived as a result of a “private arrangement” and that as a result the Act specifically precludes the conferring of parental rights and responsibilities on the non-resident parent. Parties are agreed on the factual circumstances around Archie’s conception. Archie was conceived using donor sperm, at home, rather than at a registered fertility clinic. This distinction is crucial. The non-resident parent does not have parental rights and responsibilities in respect of Archie. 

The distinction exists for public policy reasons. The provisions do not, however, consider the welfare of the child on separation. The 1995 Act does not contain provision for consideration of the welfare of donor-conceived children. The Act is nevertheless capable of being used to found an application for the granting of parental rights and responsibilities in favour of the non-resident parent where a s 11 order is necessary and in the best interests of the child (and, if appropriate, consistent with the child’s views depending on his age and level of maturity). 

I had the pleasure of meeting Archie to take his views in the context of preparation of a child welfare report. He had no knowledge of the legal wrangling which was going on behind the scenes. His fears and hopes for the future were similar to those often expressed by children of his age experiencing parental separation.

The experience caused me to reflect on how we as family law practitioners approach issues around methods of family creation, and the child welfare issues which can arise when parents separate. The circumstances around Archie’s conception are perhaps relatively unusual, but similar situations will no doubt arise as would-be parents become aware of what is possible.

Time to engage

A joined-up approach is necessary. There are presently a number of family law-related consultations underway in Scotland, including but not restricted to consideration of surrogacy law, the rights of former cohabitees, the rights of the child, and the provisions of the 1995 Act. As discussed, none of these specifically invites consideration of the child welfare-related issues specific to methods of family creation.

I suggest that children born of what were once “alternative” methods of family creation deserve to have a legal framework which serves their interests. Such routes to parenthood are becoming more accessible and therefore mainstream. It is essential that not only policymakers and those responsible for creating our laws but also the practitioners involved in delivering legal services are aware of the issues which can arise for children, and equipped to tender advice that is accurate, thoughtful and responsible. 

The time to have that debate is now. Otherwise, we may well find that our practice increasingly involves the management of family disputes in which the needs of children are in issue because of a failure to engage in the relevant consultations.

Of course, arguably those of us representing clients within the field of child law will always be engaged in legal debate in which subjectivity is inevitable; after all, separated parents are in conflict because they have different notions of what is in the best interests of their child. However, by engaging in the current debate the family law community can be ready to address emerging trends within the fields of family and child law, ensuring that our legal system remains fit for purpose in the modern age.   

Amanda Masson is lead partner in the Modern Families Initiative, and head of Family Law, at Harper Macleod LLP

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