23 September 2019 - Article
Starting a family and ending a marriage or civil partnership rarely go hand-in-hand. However, it can happen. Where one party feels the marriage has broken down and no longer wants children, their spouse can be left desperately still wanting to make it work and start a family. This dynamic – and the legal position – is complicated where the parties either cannot or choose not to conceive naturally, and look to IVF as an alternative.
Whether in an opposite or same-sex marriage or civil partnership, consent to treatment is required in order to qualify as the legal parent of a child conceived via IVF. However, inadequate processing of the Human Fertilisation and Embryology Authority’s standardised consent forms, different policies across UK licensed clinics and clerical errors have resulted in cases of uncertain parental status and subsequent litigation.
More difficult still, if a married couple or civil partners have an established relationship with a clinic and the birth mother’s spouse or civil partner wishes to withdraw their consent (for example, where they felt the relationship had broken down), it is possible that a child could be conceived in the window of time before consent is formally withdrawn, leading to further complications.
If this happens, the birth mother’s spouse or civil partner is automatically considered the legal parent of the child, unless it can be shown that they did not consent to, or know of, the procedure.
From a legal perspective, consent will be determined in accordance with the following:
- Was the IVF embarked upon and carried through jointly and with full knowledge of both parties?
- From the outset of the treatment, did both parties intend to be legal parents of the child?
- From the moment the pregnancy was confirmed, did both parties believe they were parents of the child, and did this remain their belief when the child was born?
Proving knowledge, intention and belief of consent – or lack thereof – is not straightforward where it is a ‘your word against theirs’ scenario. Written evidence (such as an email explaining your feelings to your spouse or civil partner) is essential but not always effective, as emails, letters or texts can go astray or be left unread.
Parenthood and financial claims
Fast-forward to a situation where treatment is successful and a child is born. The birth mother’s spouse or civil partner cannot be the legal parent where it can be proved there was no consent. This means that the CMS (Child Maintenance Service) jurisdiction would not apply.
However, they could still be treated as being responsible as a spouse to provide financial support if they were to treat the child as a ‘child of the family’, maintaining a close relationship and sufficiently assuming responsibility for the child’s maintenance, knowing that the child was not their own. This could give rise to certain financial claims being made for the child, albeit the relationship with the mother has broken down. Whilst this is quite a leap from withholding consent to treatment, it is not unheard of where a relationship has been on and off.
If you are about to separate or embark on divorce or dissolution and no longer want to start a family, then clear communication is key, as is making sure you have documentary evidence of those communications. This is easier said than done in an emotionally charged environment, and informing your spouse that you feel the relationship has come to an end and you no longer want to have children together of course requires great sensitivity. It will also be essential to explain the same to the IVF clinic in question quickly and clearly, confirming your decision in writing. Honesty and clarity is the way forward.
Having all your (legal) ducks in a row from the point you decide to withdraw consent to treatment will give you more control over your future parental status and financial exposure.
It’s complicated… but so is parenthood.