ADOPTION, SURROGACY & FERTILITY
Fertility Law for Intended Parents
About Fertility Law for Intended Parents
Fertility law decides who a child's legal parents are after IVF or treatment with donor sperm, eggs or embryos, and it looks at the position at the time of the embryo transfer or insemination, not at what the adults intended. For couples who are not married or civil partners, the second parent's status can depend on written notices given to a licensed UK clinic before treatment. We advise intended parents before and during treatment so that consents, clinic forms and any donor agreement match the family they plan to create.
Who this is for
- Couples starting IVF or donor insemination who want both partners recognised as legal parents
- Unmarried and same-sex couples checking the clinic parenthood forms before treatment
- Single women and couples planning to conceive with a known donor
- Intended parents having treatment abroad or storing eggs, sperm or embryos for later use
How RakLAW helps
- Explain who the Human Fertilisation and Embryology Act 2008 treats as each legal parent on your facts
- Check the timing and content of consent and parenthood notices before transfer or insemination
- Draft a written agreement with a known donor or co-parent recording what everyone intends
- Advise on consent to storage, withdrawal of consent and use after a partner's death
- Plan any court application that may be needed after treatment abroad or surrogacy
- Apply for a declaration of parentage where clinic paperwork has gone wrong
What Fertility Law Decides for Intended Parents
Two Acts govern assisted conception in the UK. The Human Fertilisation and Embryology Act 1990 sets the rules for licensed clinics, including consent and storage. Part 2 of the Human Fertilisation and Embryology Act 2008 decides who a child's legal parents are, and it does so by looking at the facts at the time of the embryo transfer or insemination.
The woman who carries the child is treated as the mother, and no other woman is, whether or not her own eggs were used and whether treatment took place in the UK or elsewhere. A woman whose egg is used but who does not carry the child is not a parent for that reason alone. Whoever the Act identifies as a parent is treated in law as the parent for all purposes.
This is why the legal position can differ from what you intend. In surrogacy, the surrogate is the legal parent at birth, and parenthood can be transferred to the intended parents only by a parental order or adoption. Our surrogacy law page covers the arrangement itself. This page concentrates on treatment where one of the intended parents carries the child.
Who the Second Legal Parent Is
The second parent depends on your relationship at the time of the transfer or insemination, and on where treatment takes place.
- Married couples and civil partners using donor sperm: the spouse or civil partner is treated as the father or second parent unless it is shown that they did not consent to the treatment. This applies whether treatment was in the UK or elsewhere.
- Couples who are not married or civil partners: the partner is treated as the father or second female parent where donor treatment is provided in the UK by a licensed clinic and, at the time of the transfer or insemination, both of you have given the clinic signed written notices consenting to that, which neither of you has withdrawn.
- Single women treated at a licensed clinic with donor sperm: the donor is not the father, so you are the child's only legal parent.
The written notices are given on forms issued by the Human Fertilisation and Embryology Authority (HFEA): form WP, completed by the woman having treatment, and form PP, completed by her partner. The HFEA says they must be completed before the sperm is inseminated or the embryo transferred, and cannot be completed afterwards.
A donor who gives the consent the 1990 Act requires is not the child's father. GOV.UK states that a man who donates through an unlicensed clinic is the legal father under UK law. Our page on donor conception and legal parenthood deals with donors in detail.
Legal parenthood is not the same as parental responsibility. A second female parent who is not the mother's spouse or civil partner acquires parental responsibility by being registered as the child's parent, by agreement with the mother or by court order.
Consent, Storage and Use After Death
Schedule 3 to the 1990 Act requires consent to the use or storage of eggs, sperm and embryos to be in writing and signed. Before you give it, you must be given a suitable opportunity to receive counselling and the relevant information. An embryo created in vitro must not be used unless each person whose eggs or sperm created it has given an effective consent.
Consent can be varied or withdrawn by notice to the clinic, but not once the embryo has been used in treatment. If one of you withdraws consent to an embryo being stored, storage remains lawful for up to 12 months, which the HFEA calls a cooling off period.
Since 1 July 2022 eggs, sperm and embryos for treatment can be stored for up to 55 years from the day they are first stored, and the HFEA says consent must be renewed every 10 years for storage to continue lawfully. If you want them used after your death, the appropriate written consents have to be in place. The HFEA says storage for a named partner's use can then continue for up to 10 years from the date of death.
Where a partner dies before the transfer or insemination, sections 39, 40 and 46 of the 2008 Act can allow that partner to be recorded as the child's parent in the register of births, for that purpose only. The conditions include the partner's written consent and a written election by the mother within 42 days of the birth.
A licensed clinic must also take account of the welfare of any child who may be born, including the child's need for supportive parenting, before it provides treatment.
Evidence and Common Problems
Keep a dated copy of every consent and parenthood form you sign. These are the points where the legal position and a family's intentions can come apart:
- Parenthood forms signed after the transfer or insemination, missing from the clinic's file or completed on the wrong form.
- Marrying or registering a civil partnership after conception. The Act looks at your status at the time of treatment.
- Donor treatment abroad for couples who are not married or civil partners. The written notice route applies only to treatment in the UK by a licensed clinic, so the partner's position may have to be secured another way, for example by step-parent adoption.
- Conception at home or through an unlicensed arrangement with a known donor. The donor is the legal father under UK law unless the birth mother's spouse or civil partner is treated as the second parent.
- Separation during treatment. A parenthood notice stays in force until one of you gives the clinic signed written notice withdrawing it.
- Relying on an agreement. A written agreement with a known donor records what everyone intended, but it cannot change who the Act treats as a parent.
Paperwork failures can sometimes be put right. In 2015 the President of the Family Division heard a group of cases in which clinics had lost or wrongly completed forms WP and PP, and made declarations of parentage under section 55A of the Family Law Act 1986 on the evidence of what each couple had signed and intended before treatment. Each case depends on its own evidence.
Birth registration follows legal parenthood. GOV.UK's guidance on who can register a birth sets out the position for female couples, and says male couples must get a parental order before they can be registered as parents.
How Fertility Law Advice Works
- We take your circumstances: your relationship status, whose eggs and sperm will be used, who will carry the child and where treatment will take place.
- We set out in writing who the 2008 Act treats as each legal parent on those facts, and what would change the answer.
- Before the transfer or insemination you sign the clinic's consent and parenthood forms. We explain what each form does; the forms are completed with your clinic.
- Where a known donor or co-parent is involved, we draft a written agreement recording what everyone intends about contact, finances and the donor's role.
- Where donor treatment abroad would leave a partner without legal parenthood, or where a surrogate will carry the child, we plan the application that may follow the birth, such as a parental order or adoption, before conception.
- After the birth we advise on registration and parental responsibility. Where paperwork has failed, the application to the family court for a declaration of parentage is made on form C63; court fees are listed on the GOV.UK court fees page.
When Legal Advice Is Especially Important
Take advice before treatment starts where:
- you are not married or civil partners and donor sperm or donor embryos will be used
- you plan to conceive at home or with a known donor, or to co-parent with someone who is not your partner
- treatment will take place outside the UK, or one of you lives abroad
- you have separated, or one of you wants to withdraw consent to stored embryos
- a partner is seriously ill or has died and stored eggs, sperm or embryos may be used
- your clinic has told you that a form is missing or was signed late
If your child is born overseas, nationality and entry to the UK are separate questions for our family immigration solicitors.
How RakLAW Solicitors Can Help
RakLAW Solicitors advises intended parents on fertility law as part of our adoption, surrogacy and fertility work, from 42 Shad Thames in Southwark, a short walk from Tower Bridge. We deal with the legal questions; medical decisions stay with you and your clinic.
Our work is privately funded and we do not offer legal aid. Our fees for family law are published on this site. To talk through your plans, call 0203 345 2000 or book an appointment for a free 15-minute consultation.
Frequently asked questions
Who is the legal mother if we use donor eggs?
The woman who carries the child. Section 33 of the Human Fertilisation and Embryology Act 2008 treats her, and no other woman, as the mother, wherever treatment took place. The egg donor is not a parent merely because her egg was used.
Is my husband the legal father if we use donor sperm?
Yes, unless it is shown that he did not consent to the treatment. Section 35 applies where you were married or civil partners at the time of the transfer or insemination, in the UK or elsewhere. Section 42 applies the same rule to a wife or female civil partner, who is treated as the child's second parent.
We are not married. Can my partner still be a legal parent?
Yes, where donor treatment is provided in the UK by a licensed clinic and you have both given the clinic signed written notices that are in place at the time of the transfer or insemination. The HFEA's forms are WP for the woman having treatment and PP for her partner.
Do the parenthood forms have to be signed before treatment?
Yes. The Act requires the agreed parenthood conditions to be met at the time of the embryo transfer or insemination. The HFEA says the forms must be completed before then and cannot be completed after treatment has taken place.
Does treatment abroad change who the legal parents are?
It can. The rules on the mother and on a spouse or civil partner apply wherever treatment takes place. The written notice route for couples who are not married or civil partners applies only to treatment in the UK by a licensed clinic, and the HFEA advises anyone having treatment overseas to take their own legal advice.
Is a known donor the legal father of my child?
GOV.UK says a man who donates sperm through an unlicensed clinic is the legal father under UK law, whereas a donor through an HFEA licensed clinic is not. Where the birth mother's spouse or civil partner is treated as the second parent, the Act provides that the donor is not the father.
Is a known donor agreement legally binding?
It cannot change who the law treats as the child's parents, because the 2008 Act decides that. It is a record of what everyone intended. If there is a later dispute about the child's upbringing, the family court decides it with the child's welfare as its paramount consideration.
Can I withdraw consent to the use of our embryos?
Yes, by notice to the clinic, until the embryo has been used in treatment. If one person withdraws consent to storage, the embryo can lawfully stay in storage for up to 12 months. An embryo created in vitro cannot be used without the effective consent of each person whose eggs or sperm created it.
How long can eggs, sperm or embryos be stored?
For treatment, up to 55 years from the day they are first placed in storage. The limit was extended on 1 July 2022. The HFEA says you need to renew your consent every 10 years for storage to continue lawfully.
What if our clinic made a mistake with the parenthood forms?
You can apply to the family court for a declaration of parentage under section 55A of the Family Law Act 1986. In 2015 the High Court made declarations in several cases where forms were missing or wrongly completed, on evidence of what had been signed and intended before treatment. The outcome depends on the evidence in each case.
Can a partner who has died be named on the birth certificate?
In some cases. Where the partner consented in writing to the use of their sperm or the embryo after their death and to being treated as the parent, and the mother elects in writing within 42 days of the birth, the partner can be recorded in the register of births. They are treated as the child's parent for that purpose only.
Is legal parenthood the same as parental responsibility?
No. A second female parent who is not the mother's spouse or civil partner acquires parental responsibility by being registered as the child's parent, by agreement with the mother or by court order. GOV.UK says a person who is married to or in a civil partnership with the birth mother when the child is born will usually have it.
Speak to a RakLAW Solicitor
Book a confidential consultation with our family law team. We will talk through your situation, explain your options, and set out the practical next steps.
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