Contentious Trust and Probate Quarterly Round-Up: Q2 2020
With the increasing use and sophistication of assisted reproduction, including the potential of genetic modification procedures, the family courts are now sensitively weighing up the competing interests of the parents, donors and children who are the subject of genetic engineering.
The Human Fertilisation and Embryology Authority (HFEA) are currently considering the public’s response to the possibility of genetic modification and IVF production, which inevitably necessitates three genetic parents to eliminate mitochondrial mutations (genetic conditions passed to children through genetic mutations), which the gestational mother may carry. One procedure known as maternal spindle transfer will enable doctors to collect eggs (using the usual IVF procedure) from the affected mother, removing the unhealthy nucleus from one egg and placing it into the egg of an unaffected egg donor, which has its own nucleus removed. The ‘new’ egg would carry all of the mother’s chromosomes with the donor’s mitochondria, which is then fertilised. With the expansion of these procedures (which remain unlawful in England and Wales), we are witnessing the family courts engage in a careful and considered examination of how developments in genetic engineering are affecting preconceptions of parenthood, parentage and parental responsibility.
The very recent case of A v B&C 2012 is a paradigm example. The case presented some very complex and novel points relating to parent and child relationships, involving two lesbian mothers, one of whom were the biological mother and a gay sperm donor, the child’s biological father. Before embarking upon the fertility arrangement, all three adults agreed that the child’s father would only have a very secondary role in the child’s life in view of the fact that both mothers wanted to adopt a traditional two parent family model at home.
In spite of the agreement reached between all three parties the Court of Appeal encouraged caution when considering agreements reached between parties prior to any fertility and family planning, emphasising that the key consideration was the child’s welfare. Very importantly, the court recognised that the time has come to recognise the ever changing nature of ‘family life’, and even more importantly, how such changes can impact the overall physical and emotional needs of the children who are themselves the subject of the family planning.
In its current form, English family law only recognises a child as having one legal mother, the gestational mother. In a lesbian partnership, how is the second parent properly recognised? There is a plethora of other very important questions which are yet to be answered, for example, when and why will the courts disregard agreements reached between two or more adults consenting to the family planning process? Will the adults involved in the family planning process be treated on an equal footing or will there be a hierarchy of parental ‘rights’ and responsibilities? How this will impact the increasing variations of parenthood remain unknown. There are a multitude of different family structures in our fluid and multicultural society. Whether English family law will be reformed to enable a legislative process that facilitates adult autonomy, developments in assisted reproduction and the child’s welfare into one holistic and seamless model is yet to be seen.
With all of these changes, there is potential for conflict and complexity and we would recommend our clients to seek advice at the earliest opportunity.
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