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National Fertility Awareness Week 2025 - Every Voice, Every Journey
Lydia Holland
It is National Fertility Awareness Week and, this year, the campaign is “Every Voice, Every Journey”.
For many, fertility journeys are a long (and often isolating and difficult) process. Whether you are trying to conceive, undergoing invasive tests, dealing with pregnancy loss, or considering alternate routes to parenthood, fertility journeys can have a huge impact on relationships and, sadly, some are unable to survive (in)fertility journeys.
Everyone’s fertility journey is different and it is important to take advice about the circumstances you are in. You may have lots of questions about the first stage, or the next stages of your fertility journey and, in an age where we are overwhelmed with information (and mis-information), it’s hard to know where to start.
As a solicitor (and a friend), I’ve been asked many questions about the law surrounding different routes to parenthood and separation. As a starting point, here are some of the more frequently asked questions, that may address your own initial thoughts and concerns:
If we use donor sperm/eggs, who will be the child's legal parents?
Woman using donor eggs and/or sperm
If a woman carries a child as a result of egg and/or sperm donation, she will be treated as the child’s mother and will automatically have parental responsibility, regardless of any genetic connection
Couples using donor sperm (opposite-sex and same-sex female couples)
If you are married or in a civil partnership, or the child is conceived by artificial insemination in a UK licensed clinic, the birth mother’s partner will be treated as the child’s father or second female parent and will automatically have parental responsibility (unless they did not consent to the artificial insemination).
If you are not married or in a civil partnership but the child is conceived by artificial insemination in a UK licensed clinic, the birth mother’s partner will be treated as the child’s father or second female parent and will have parental responsibility (unless they did not consent to treatment).
I’m considering donor conception. Should I be doing this through a licensed clinic?
The Human Fertilisation and Embryology Act 2008 (HFEA 2008) determines who a child’s legal parents are in cases of donor conception. As can be seen from the above, the rules around legal parenthood depend on the birth mother’s marital status and whether treatment takes place in a UK licensed clinic.
Artificial insemination taking place at home with a known donor could result in unintended consequences in respect of parentage.
Can I use a surrogate in the UK?
Yes, but here are the key things you should know:
- It is an offence to advertise as, or for, a surrogate in the UK. Many people turn to surrogacy agencies to start their surrogacy journey.
- Surrogacy contracts are not legally enforceable in the UK.
- There are two types of surrogacy: partial/traditional surrogacy (where the surrogate’s egg is used) and total/gestational surrogacy (where the surrogate has no genetic link to the child she is carrying).
- Even if the surrogate has no genetic link to the child, she will be the child’s legal mother under English law, and if she is married or in a civil partnership, her spouse/civil partner will be the child’s second legal parent (unless they did not consent to the arrangement).
- In order to extinguish the surrogate’s (and her spouse/civil partner’s) legal parentage and parental responsibility under English law, intended parent(s) need to apply to court for a parental order, to become the child’s legal parent(s) and acquire parental responsibility.
- There are a number of criteria to meet before a parental order can be granted. These are known as the “section 54” (HFEA 2008) criteria. This means:
- one of the applicants must be genetically linked to the child (if only one person is applying, they must have a genetic link to the child);
- if two people are applying they must be married, in a civil partnership or an enduring family relationship;
- the application must be made within 6 months of the child’s birth;
- the child must be living with the applicant(s) at the time the application and order are made;
- one or both applicants must be domiciled in the UK;
- the applicant(s) must be 18 or over;
- the surrogate must freely and with full understanding of what is involved, agree unconditionally to the making of the order; and
- the court must be satisfied that no money or other benefit (other than reasonable expenses) have been given or received by the applicant(s) in respect of the arrangement.
We are separating and have a child through surrogacy. Will we both get to spend time with our child?
Legal parentage will depend on whether the parental order process has taken place (explained above). If a parental order has been granted and you are the child’s legal parents, you will both have parental responsibility and are each likely to spend frequent time with your child.
If you have not yet applied, it should still be possible to make the application for a parental order together, even if you are separating.
If you are unable to apply for a parental order (for example, if you do not meet the section 54 criteria), you can apply for a child arrangements order. A child arrangements order will not confer legal parentage (or extinguish the surrogate’s legal parentage) but it will give you each parental responsibility and confirm that, as a matter of law, your child should be living or spending time with you.
If you are unable to reach an agreement regarding the time your child spends with each of you, the court can make a decision about this (although matters should always be resolved out of court where possible) based on what it considers to be in your child’s best interests.
We are separating, but we have embryos in storage. What happens next?
If you and your partner separate, you need to inform your clinic and let them know whether you want to change or withdraw your consent to the storage of your embryos.
If one of you still wants to use the embryos post-separation, but the other does not, you will need to speak to your clinic. By law, the embryos can only be used if both of you have given your consent and consent can be withdrawn at any point up until the embryo is transferred to the womb.
If you are able and intend to use your embryos post-separation, you should seek legal advice in respect of legal parentage (and you may also want to enter into a pre-conception agreement).
This is just a starting point and it’s important to seek your own legal advice, that reflects your journey.
If you require further information or advice from our team of specialist family lawyers, please contact a member of our team, email us or call us on +44 (0)20 7814 1200. Alternatively, you can submit a brief online enquiry here.
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