All Families Great and Small: Changing Family Forms

The third session of the Progress Educational Trust (PET)'s 2021 annual conference 'Reproducing Regulation: Who Regulates Fertility and How?' was 'All Families Great and Small: Changing Family Forms,' chaired by family law barrister Andrew Powell, who was named Junior Barrister of the Year at the 2021 Family Law Awards. The speakers were Natalie Sutherland, partner at Burgess Mee Family Law, Professor Emily Jackson, professor of law at the London School of Economics and Political Science, Katherine O'Brien, associate director of communications and campaigns at the British Pregnancy Advisory Service, and Dr Ippokratis Sarris, director of King's Fertility.

Sutherland's presentation focused on the legal difficulties involved in platonic co-parenting. Those interested in undertaking these types of arrangements can find each other on apps, like 'Just a Baby,' which are similar to Tinder. Platonic co-parenting is on the rise, and Sutherland assured the audience that on the whole these arrangements are successful and 'are good... until they're not.' As with surrogacy, platonic co-parenting is a legally risky undertaking.

First, the agreements formed at the outset are legally unenforceable. Sutherland was clear that these arrangements are crucial for setting a framework for the relationships between the parties, and ideally ensure that there won't be any surprises down the line.

Second, there may be difficulties with identifying the legal parents. While the legal mother is always the individual who gives birth, the second legal parent may be less readily identifiable and depends on how conception took place. If natural insemination took place, the biological father is recognised as the legal father, regardless of whether he only wanted to act as a sperm donor. If conception involved artificial insemination, similar to surrogacy, and the putative legal mother was married or in a civil partnership then their partner is the second legal parent, unless it can be shown the partner did not consent to the insemination.

This is an important point, which Sutherland highlighted in her discussion on Re G; Re Z [2013] EWHC 134 (Fam), a complicated case demonstrating the importance of 'connection' and maintaining stability in children's lives (see BioNews 691). Until the law shifts away from rigid adherence to nuclear family structures, platonic coparenting arrangements will remain in the shadows, despite their success.

Sutherland's presentation dovetailed nicely into the next presentation from Professor Jackson, who focused on legal motherhood. The Oxford English dictionary definition of mother encompasses three elements – femaleness, gestation, and social role – allowing for some flexibility in assigning importance to whichever is more suitable for a particular context. However, the law adopts a single criterion as its basis of motherhood: gestation.

Professor Jackson highlighted three situations that aptly demonstrate how the law's reliance on gestation as the basis of motherhood results in difficulties. First, with reference to Re TT and YY [2019] EWHC 1823 (Fam), Professor Jackson elaborated on how the current framework considers gestation as separate from being female, with only the former needed for legal motherhood (see BioNews 1018). Second, she underlined that while the Law Commission may have decided to refer to 'surrogates', and not 'surrogate mothers', the law has not changed and still disregards their intention and designates them as legal mothers. Third, referring to the differences drawn between legal fathers and legal second female parents, Professor Jackson pointed out how 'the law has it wrong when looking at how families see themselves.' She drew comparisons between the legal parenthood and the institution of marriage, noting how degendering the former would aid in resolving the difficulties with the current legal framework. Echoing Sutherland, Professor Jackson's presentation demonstrated the very real need for legal recognition of diverse family structures without prejudice.

Continuing on the theme of non-traditional family structures, O'Brien's presentation was dedicated to exposing the obstacles faced by those outside of the heteronormative family structure. Tracing the historical development of the law regulating access to fertility treatment, O'Brien started with clinicians' requirement to account for future children's need for a father encompassed within the Human Fertilisation and Embryology Act 1990. This requirement unnecessarily discriminated against single women and lesbian couples, in the pursuit of upholding morality. Fertility treatment was harder to access, if not impossible, as a result. O'Brien noted that the preservation of morality was mentioned in debates in 2005, when this section was deemed unjustifiably offensive. While this requirement was abandoned legally in the Human Fertilisation and Embryology Act 2008, single women and lesbian couples still face difficulties in accessing fertility treatment.

To provide support for this argument, O'Brien discussed the discrepancies in clinical commissioning groups (CCG) funding for fertility treatment. Specifically, in 2019, it was revealed that single women in south east London were being denied treatment. The NHS policy stated that 'Because of the known disadvantage that providing assisted conception to a single woman would cause both the child and the mother, funding of assisted conception for single women is not available in South East London.' Following an extensive campaign with cross-party support for improving access to IVF, this policy was scrapped (see BioNews 1032). Notwithstanding this change, the legal framework still disadvantages single women in different ways, such as the need for a genetic link in surrogacy arrangements. O'Brien ended her talk with mention of the British Pregnancy Advisory Service's support of the legal case brought by Megan and Whitney Bacon-Evans (known as 'Wegan') against Frimley CCG, arguing their policy contravenes the European Convention on Human Rights (see BioNews 1121).

As if by design, Dr Sarris' presentation picked up on the inherent heteronormativity present in the legal regulatory framework governing partner-created embryos. With an increasing number of same-sex couples are pursuing fertility treatments (see BioNews 1097), it's important for the law and medical guidance to recognise these arrangements appropriately.

In heterosexual couples, male partners do not have to undergo donor screening when their gametes are used. By comparison, in female same-sex couples, the partner providing gametes is registered as a donor, and as such would require donor screening, a long, costly, and medically unnecessary process. However, Dr Sarris revealed clinics felt that as same-sex female partners were couples in intimate physical relationships, partner screening was more appropriate. This understanding was reflected in a new consent form, called the WPT, introduced by the Human Fertilisation and Embryology Authority (HFEA) in June this year, which allows a woman in a same-sex relationship to give her eggs or embryos for the treatment of her female partner without the need to be registered as a donor. However, in August, the HFEA clarified that while there was no need to register the donating partner as a donor, they would still need to undergo donor screening.

Dr Sarris turned to the relevant EU directives, incorporated in the UK in 2007 and brought to light the heteronormativity present: partner donation is legally restricted to heterosexual couples, with no allowance made for same-sex couples. As the UK is no longer a member of the EU, there is an opportunity to change the law, so that it no longer breaches the Equality Act 2010, which protects the right of sexual minorities to not face additional burdens for health treatment. Cognisant of the complexities associated with regulatory changes, Dr Sarris proposed an interim solution for clinics wanting to avoid the clinically inappropriate and socially unacceptable requirement of donor screening: provided the HFEA does not take action against clinics, case-by-case risk assessments to evaluate whether the gamete provider could be screened as a partner could be undertaken (see BioNews 1120). This approach would alleviate the burden on clinics and patients, while also allowing medical practice to reflect society's acceptance of LGBTQAI+ families.

The session concluded with a lively Q&A, with audience members picking up on how the law is more concerned with form rather than substance. There was clear agreement that the current framework is rigid with regards to the assignment of legal motherhood, with Professor Jackson noting that while historically identification of the individual who gave birth is important, reproductive technological advances have demonstrated that this approach is no longer fit for purpose.

Sutherland also picked up on this point, noting that in surrogacy arrangements, the current framework recognises the surrogate's bodily autonomy by vesting her with legal motherhood. The panellists noted that a significant change to the law is necessary to deal with future conundrums, such as ectogenesis, with changes to birth certificates and birth registration more widely.

Of course, futureproofing the law is difficult, with Dr Sarris remarking how technology tends to leap ahead of law and ethics. Sutherland agreed, as she feels that the law is consistently falling behind societal acceptance, with future-proofing practically impossible. The chair, Powell, concluded that the takeaway from this session was clear: the law must match up with social reality if it is to protect all families adequately.

The Progress Educational Trust (PET) would like to thank the sponsors of its conference – the Anne McLaren Memorial Trust Fund, the Edwards and Steptoe Research Trust Fund, ESHRE, CooperSurgical, Ferring Pharmaceuticals, Hart Publishing, Merck, the Society for Reproduction and Fertility, Theramex, TMRW Life Sciences, Vitrolife and the Institute of Medical Ethics.