New families: the winds of change

As the Donor Conception Network celebrates its 30th birthday, it seems appropriate to reflect on how the law around family creation has evolved in the past few years. Advances in medical science have opened up the prospect of parenthood to many more people, giving rise to complex considerations around parenthood, rights and responsibilities.

As an attendee of the celebration in London, I was struck by the perception on the part of our colleagues south of the border that not much happens in Scotland in terms of the law of donor conception, surrogacy and adoption. One colleague indicated in terms that she tends to recommend that parents and would-be parents seek orders in the High Court in London, such is the lack of knowledge and expertise outwith the capital.

Challenge for the Scots

My invitation to fellow family law and child law practitioners in Scotland is that we shift that perception. The more confident we become in practising in this area, and the more cases are dealt with by the Scottish courts, the greater the recognition we will receive for our ability to advise effectively on cases in which our clients seek to create or expand their family via donor conception, surrogacy or adoption.

The reality is that much is going on in Scotland in the area of family creation. Members of the public are far more aware of the options available to them should they wish to start a family. A more open dialogue is emerging, with accounts of surrogacy arrangements featuring more often in the media. A more open culture exists now around fertility issues, and the methods of family creation available to single people and same sex couples. Instances of individuals in platonic relationships who seek to co-parent with another are not unheard of – even in Scotland. Clients are able to access treatment abroad. Surrogacy and adoption with an international element are becoming more commonplace in Scotland, in my experience.

It is important that we are also aware of the options for treatment abroad, from which particular considerations can flow. Advances in medical science including treatment with adopted embryos have made solo parenthood more accessible. Some clinics abroad specialise in treatment for female couples, embryos being created using the gametes of one partner, donor sperm, and the second partner then carrying the baby. Genetic parentage and gestational parentage are then achieved. We need to be aware of how such treatments translate into acquisition of parentage. Practitioners may also require to consider issues of jurisdiction and immigration.

Creative law?

The difficulties posed by our existing surrogacy laws are well documented, with the Scottish Law Commission and the Law Commission of England & Wales having published their joint report in March of this year. The law needs to evolve to keep pace.

With the exception of reform of surrogacy law, however, new legislation is not coming down the line. The Human Fertilisation and Embryology Acts have not been reviewed under consultation for many years. Legislative change does not happen particularly quickly.

What we are beginning to see is an emerging trend towards decisions which find creative ways of delivering what instinctively feels to many child and family law solicitors like the “right” outcome, notwithstanding the departure from a strict application of the legislative principles. Decision makers appear keen to deliver particular outcomes, even if that means significant legal gymnastics in terms of justification of the decisions.

Jennings: consent issue

In Jennings v Human Fertilisation & Embryology Authority [2022] EWHC 1619 (Fam) a widowed husband sought permission from the High Court to use the last embryo of his late wife, who had died in pregnancy. He sought declarator that it was lawful for him to use the embryo in a surrogacy arrangement. He accepted that his wife had not provided explicit written consent to the posthumous use of their shared embryo in a surrogacy arrangement, but argued that her consent could be implied. His application was granted in June 2022. He succeeded in achieving deviation from the strict statutory consent regime created by the Human Fertilisation and Embryology Act 1990 (as amended).

The Jennings decision has been criticised by one legal academic as “an erroneous decision that escalated into a usurping of the strict consent regime of the Human Fertilisation and Embryology Act 1990 with an alternative form of consent” (Lisa Cherkassky, University of Exeter, Case Comment in (2023) 139 Law Quarterly Review (January), 19-25).

AY: surrogacy at home

In AY and BY v ZX [2023] EWFC 39 Macdonald J confirmed that a parental order can be made if a surrogate is artificially inseminated at home, and not in a licensed fertility clinic. This decision has proven controversial. The distinction exists for reasons of public policy. It is aimed at guiding would-be parents towards treatment at a registered clinic, for valid reasons; yet fertility treatment is not within the grasp of all, hence the rise in the incidence of artificial insemination by private arrangement.

It remains to be seen how the decision will be assessed in Scotland. The surrogacy legislation and the provisions of the HFEA are intra-UK. Will the Scottish courts be so bold as to blur the distinction between artificial insemination at a clinic and artificial insemination at home?

I have commented before on the crucial distinction between artificial insemination at a registered fertility clinic and private arrangement, the distinction being key to determining whether or not a non-gestational parent has parental rights and responsibilities in respect of a child. In certain circumstances one parent may require to adopt the child they consider to be theirs. The decision discussed above involved a surrogate; in some circumstances a second parent can have no generic or gestational link to the child they consider to be theirs, and they have to seek an adoption order in respect of the child in order to acquire legal rights and responsibilities in respect of that child. Will the courts find a way around that in a scenario in which a same sex couple conceive using donor sperm at home, without a surrogate?

Scottish decisions in the pipeline

There are at least two significant cases ongoing within our own jurisdiction which when decided and reported will signify the evolution of a body of Scottish authorities.

A written judgment is awaited from Lady Carmichael in the cases of HF1-23 and HFE2-23, setting out the basis on which she was prepared to accept that applications for parental orders were competent notwithstanding that the facts did not satisfy the terms of s 54 of the Human Fertilisation and Embryology Act 2008.

Twins were carried by the intended mother’s sister, having been conceived with the intended father’s sperm. The intended parents sought parental orders in terms of ss 54-55 of the 2008 Act. The merits of the applications required to be tested by reference to provisions in the Adoption and Children (Scotland) Act 2007, including consideration of “the need to safeguard and promote the welfare of the child throughout the child’s life”. There were however competency issues in the case, some of the terms of s 54 not having been satisfied at the time the applications were heard.

Specifically, the applications were lodged 21 months after the children’s birth, rather than within the six month period specified in s 54(3). The applicants’ relationship had broken down. They were living apart. They did not therefore satisfy the provisions of s 54(2)(c), which states that applicants must be two persons who are living as partners in an enduring family relationship. The children lived with the female applicant only. In terms of s 54(4) the child’s home must be with the applicants at the time of the application and the making of the order.

The justification for the granting of the orders is expected within the next few weeks.

Secondly, an action is ongoing at Glasgow Sheriff Court in which the factual issue of whether a child was conceived naturally or via artificial insemination by private arrangement is key to determination of who holds parental rights and responsibilities in respect of the child, and whether or not it is in the child’s best interests to have a contact relationship with a person to whom his mother was married at the time of his birth but who is neither a gestational nor genetic parent.

Issues for practitioners

Practitioners need to be able to flit seamlessly between the Children (Scotland) Act 1995 and the Human Fertilisation and Embryology Acts, depending on the particular circumstances in which a child was conceived and the relationship(s) between those involved in the child’s creation. It is important that we ask the right questions about how and where a child was conceived and subsequently carried. Parenthood is context specific, depending on the method of conception and whether or not a surrogate was involved.

There is much that we need to grapple with in terms of weighty concepts of parentage, right to family life, access to treatment, and legal remedies. The need for solicitors to understand the art of the possible, and the complex legal framework governing what is necessary to regulate parenthood emanating from the possible, has increased.

Public policy considerations and the notion of fairness will no doubt continue to feature in the discussion, but the fundamental principle of the child’s best interests will I hope prove the determining factor in any judicial decision relating to parentage, regardless of how and where the child at the heart of proceedings may have been created.

This article first appeared in The Journal of the Law Society of Scotland

https://www.lawscot.org.uk/members/journal/issues/vol-68-issue-07/new-families-the-winds-of-change/