Amanda Masson: Legal parenthood by any means a complex issue

A recent decision at Edinburgh Sheriff Court considered interesting issues about legal parenthood which it is anticipated will become more common as alternative family structures evolve.

Amanda Masson is a Partner in the Family Law team at Harper Macleod LLP
Amanda Masson is a Partner in the Family Law team at Harper Macleod LLP

The case involved twins who were born via artificial insemination. The court action was started by the twins’ birth mother (who was also the biological mother). The mother asked the court to declare that her ex-partner was not a legal parent. At the time of fertility treatment, the couple were together. They separated. The birth mother sought to argue that her former partner was not in fact a legal parent and as such did not have parental rights and responsibilities in relation to the twins, including the right to have contact with them.

The parties to the court action, A & B, had been in a long-term relationship which had lasted for seven years. They wished to start a family and, as a same-sex couple, identified a friend willing to act as a sperm donor. The couple approached a fertility clinic who advised the couple on the best way forward. It was decided that the younger of the couple, A, would be the person to receive fertility treatment. The clinic registered B as her partner and they attended together for appointments, counselling and treatment. The couple registered the birth on a joint basis.

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In terms of Sections 43 and 44 of the Human Fertilisation and Embryology Act 2008, the couple needed to sign forms in which the person who carried the twins, A, gave consent to her then partner, B, being their legal parent. B was also required to provide consent to being a legal parent. The records held by the fertility clinic contained one of the forms, but not the form from the partner giving consent to being a legal parent.

Legally, the path to parenthood is hedged with complex issues.

The sheriff hearing the case summarised the content of the 2008 Act, setting out the essential requirements in order to meet the conditions which would allow the Defender to be treated as a parent. These conditions are:
The parent who is not carrying the children must have given notice stating that he or she consented to being treated as a parent of any child resulting from fertility treatment; the parent carrying the children must have given notice stating that she consented to that person being so treated; the notices must be in written form, and signed by the person giving the consent; and the notices have been signed before treatment took place, ie before artificial insemination occurred.

The mother argued that the forms had not been signed before treatment took place and so the agreed parenthood conditions were not met. The Defender argued that she remembered signing a form and also that she had witnessed the mother completing and signing her forms.

The court heard evidence about the circumstances leading up to the twins’ conception and the couple’s relative roles in the twins lives following their birth.

The fertility clinic’s position was simply that the forms might have been handed in to them, but lost, some records having been lost or destroyed following a flood.

The sheriff looked at other legal cases, none of them Scottish, in which the issue of legal parenthood had arisen and took the view that it was possible for the court to consider evidence in order to determine whether the forms had been signed in accordance with the rules. She concluded that the Pursuer and the Defender did sign the appropriate forms properly and at the right time. The Sheriff refused to grant the declaratory of non-parentage.

What does this mean for other couples?

This was the first reported case of its kind in Scotland. The court took seriously its duty to consider whether the conditions set out in the 2008 Act had been met. The case underlines the importance of ensuring that all legal conditions are met by fertility clinics and their patients.

There are so many options available to would-be parents now, as fertility treatments continue to evolve. In addition to the medical aspects there are essential child law implications for any patient about to embark on the journey to parenthood. However you intend to create your family, it is important to be aware of the detailed and complicated legislation around parenthood.

The legal requirements can differ depending on your particular circumstances. Whether someone intends to conceive using donor eggs or sperm, or enter in to a surrogacy arrangement, it can be useful to have specialist legal advice about parenthood and the law relating to children.

Amanda Masson is a partner in the Family Law team