Modern families in the 21st Century – it's not just about DNA

Posted by Christine Plews on
In the past the phrases 'nuclear family' and '2.4 children' were often used to describe a 'typical' family unit of a husband and a wife and their two, or more, children who all lived together.

However, in today's society the above definitions no longer work as we have families that comprise of same sex and opposite sex marriages, children being born to couples as a result of IVF treatments (using either the genetic material of the parties in the relationship or the genetic material of third parties) and children being born to couples as part of a surrogacy arrangement (again with the above issues arising in respect of the mixture of genetic material that is used).

Adapting law to meet today's needs

Due to the ever evolving structure of a family unit, the law has also had to adapt to deal with a number of new issues surrounding this, most notably when defining who actually should be and can be legally recognised as a parent for a child.

As it currently stands, the law defines the legal mother of a child (whether conceived naturally or by way of assisted reproduction) is the woman who carries and gives birth to the child regardless of whether she is genetically related to that child. This position is an irrebuttable presumption in law, which means if a child is born as a result of a surrogacy arrangement, the commissioning parents need to apply to the Court for a Parental Order which will extinguish the legal status of the surrogate mother and confer Parental Responsibility and legal parenthood on the commissioning parents.

If the legal mother is married or in a civil partnership at the time the child is born then the husband or civil partner will be the legal second parent of the child, provided that, if the child was born using assisted reproduction, the other party consented to such treatment occurring.

Where the legal mother is not married or in a civil partnership at the time of the child's birth and the birth is as a result of assisted reproduction, then the legal second parent can be identified in two ways. Either, if no choice is made otherwise, the biological father will be taken to be the legal father of the child, provided that, i) the treatment takes place at a licenced fertility client and ii) the biological father consents to be treated as the legal father. Alternatively, if the treatment has taken place at a licenced fertility clinic, the legal mother can appoint either the commissioning mother or a non-biological father to be the second legal parent of the child.

In all of the above scenarios it should be noted that sperm donors are not regarded as legal fathers and, similarly, women will not be a legal parent by virtue of an egg donation. Furthermore, the above legal definitions will apply whether the assisted reproductive or surrogacy arrangements took place in the UK or anywhere else in the world.

In the future, I suspect that further new family structures will be identified and the law will need to adapt further to recognise these. However, in all legal issues relating to a child, the welfare of that child is the paramount consideration of the Court. Therefore, on the premise alone I fully expect the law to adapt in the future so as to ensure a child is properly cared for by its legally recognised parents in whatever format this may take.

About the Author

Photograph of Christine Plews

Christine leads the Family Law Practice Group and specialises in matters arising out of divorce and separation, including cohabitee disputes. She is an experienced mediator.

Christine Plews
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