Family Law

Dad Gets Out Of Parental Obligations Thanks To Quirky British Law On Embryo Donation

Yet another reason why you need a lawyer before having a child through assisted reproductive technology.

By  
on

Last week, a British court ruled that a Dad could escape his parental responsibilities to his child conceived through the use of an embryo donation. How did that happen? Well, it’s a long story.

Six years ago, the unmarried couple, who are referred to as RQ and PA in the court’s opinion, had sought to conceive together. Thanks in part to PA’s vasectomy and in other part to RQ’s age being over 40 (which is generally a big marker for women in terms of fertility) and the related questionable viability of her eggs. Their fertility doctor recommended they consider embryo donation in Spain. The couple followed the doctor’s advice. And, after traveling to a Spanish clinic and receiving anonymously donated embryos, they successfully conceived a baby girl. Yay! So far, that went well.

Unfortunately, the relationship did not continue going as smoothly. Within six months of the baby’s birth, the couple’s relationship had dissolved. PA moved out, and discontinued all contact with the child. A year later, RQ went to court to request child support from PA. In response, PA argued that he was not genetically related to the child, was not a parent to the child, and did not owe any financial responsibility for the child. Not to ruin the ending, but apparently, he was totally right as a legal matter.

Which is pretty crazy. If an unmarried couple had adopted a living child, instead of an embryo, one parent couldn’t suddenly decide that they were not genetically related to the child, and therefore not a parent. But British assisted reproductive technology law — the Human Fertilisation and Embryology Act 2008 (HFEA) — has specific requirements and forms that must be completed in the context of embryo donation. Those forms, however, didn’t get completed in this case because the embryo donation happened in Spain.

Had the couple undergone the embryo donation and fertility treatment procedure in the UK, they would have been required to sign Form PP, wherein they would each consent to being the legal parent of the child. However, having gone to Spain, they were not under the jurisdiction of the HFEA, and did not sign paperwork meeting the HFEA’s specific requirements.

On the other hand, a mother could not escape her parental duties in this context.  RQ, despite not signing form PP, was still a legal parent to the child — thanks to giving birth to her. And had RQ and PA been married, it would have been a different story for RQ, as well.

Very Different Approaches

Sponsored

The court points out the very different approaches to gamete donation taken by the two countries. While the UK takes the approach that clinics should store information from egg and sperm donors in order to permit donor-conceived children to later identify their biological parents, Spain takes the opposite approach, promising anonymity to gamete donors.

What Ifs

Other than the lack of child support for the child, the ending is somewhat poetic. RQ, the mother of the child, after being rejected on the child support front, then sought a judicial determination that PA was not a parent to the daughter. PA was seeking the exact same declaration with regard to his fatherhood. And the child was found to be doing well and flourishing with RQ as the sole parent. So with everyone wanting the mother to be the sole parent, it must have been very tempting for the court to find the legal justification for this ruling, to reach the right outcome. But in addition to the injustice of not obtaining child support, the court’s reasoning could be applied to future situations where the parties are not so-much in agreement — possibly leaving a mom surprised to learn she is a single parent, or suddenly denying a dad parental rights he had understood to have.

The lesson, as always, is that before having a child through assisted reproductive technology, and especially if it involves a gamete donation or surrogate, whether in Spain or otherwise, you should seek legal counsel.

Sponsored

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

Topics

, , , ,