With advances in modern science, the traditional model of parenthood has been stretched, leading to difficult decisions about how laws drafted before current social and scientific norms can fit these very modern families explains Family Law Senior Associate Cara Nuttall...........
We have previously discussed on the Family Law blog, the ways in which the 3 main elements of parenthood have been isolated and no longer necessarily come as a whole package, but can be split between a number of different individuals. Legal, biological and psychological parents can all have a crucial role in the physical and psychological make-up of a child, but how are these different roles balanced when there is a dispute as which of them should undertake the traditional Parental Responsibility of giving day-to-day care.
The issue has been given most consideration by the courts in the content of same-sex couples, where a known or unknown donor is used to conceive a child, whom it is envisaged will be raised by one or other and their same-sex partner, as a nuclear family, to the partial or total exclusion of anyone else involved in bringing the child into the world (for example, the biological egg, sperm donor or surrogate mother).
The message from the court is effectively a plea to anyone thinking of entering into such an arrangement to give careful consideration to what they want prior to the child being born or even, if possible, prior to conception and to complete a written agreement (often called parenting agreement or pre-conception agreements) in order to minimise the chance of severe dispute.
There have been numerous cases when a Child has been conceived in a donor situation (whether formally or through informal arrangements at home) with each person involved in the arrangement under a very different impression about what role they will have in the future. It is therefore crucial to have those discussions before people have a child under such an arrangement as ultimately, if their expectations and wishes are at odds, the situation is never going to work and a different match needs to be found. It may sound odd that such fundamental aspects can cause a dispute only so far down the line, but it does happen and can end in deep distress and complex and expensive legal proceedings.
The list of things to consider is a long one, but worth working through carefully in order to avoid huge heartache and worry once the child is already conceived or born. This can include everything from who will care for the child and on what basis, to who will have legal rights in respect of the child, whose name the child will be given and what he or she will be told and when about their biological heritage and who will make what decisions in the child’s life as they grow older. Issues such as who will be financial responsible for the child and to what extent are also an important factor.
Any such agreement is not binding upon the court, but can be a very important factor when considering what is best for the child moving forward in light of the expectations in place when he or she was born, and what arrangements are likely to produce the most stable childhood for them and reduce conflict, whilst acknowledging the importance of a child understanding his or her true origins.
A parenting plan does not have to be a contentious issue and does not have to cost a great deal of money. It is surprising what issues and potential complications people are not aware of when they enter into such arrangements, and anyone thinking of doing so is firmly advised to seek legal advice so as to understand who will have what rights under any such arrangement, to avoid surprises and minimise the potential for disputes in the future.
By Family Law Senior Associate Cara Nuttall.