The legal status of frozen embryo’s
Josh Rubenstein, Katten Muchin Rosenman based in New York, highlights an issue that many may not be aware of: Frozen embryo’s born after a parents death are illegitimate because the parents were not married at the time of birth.
Surrogacy developments
In recent years, there has been a ‘chipping away’ at some of the criteria to ensure a parental order can be made where it is plainly in the child’s interests for that to happen. For example, “the ability of single parents to use surrogacy as a route to parenthood, and the ability of the court to make such orders outside of the specified time limit, as well as for parents who are no longer in a relationship – all of which used to be a bar to having a parental order”, he says. Along with the team, he was recently involved in a case which marks the first known case of the court being willing to make an order in favour of a living Intended Parent who had not spent any time with the child, using the widest possible definition of the “has a home with” requirement to enable that to happen.
Immigration is an important part of surrogacy
For those who have already embarked on the process without taking advice, there is some reassurance: “Regardless of what stage they are at in the process, we are able to assist clients even if they have ignored the considerations above, to ensure that the baby has legal status to live in the UK and can settle here happily with their parents”.
Time deadlines
Understanding what can and cannot be done is vital. At present in the UK, there is an arbitrary 10-year storage limit for eggs frozen for non-medical reasons.
“It was set before the introduction of vitrification, when the effects of long-term storage of frozen eggs and embryos were unknown. But with current knowledge about the safety and efficacy of vitrification, this limit is now outdated, and it is vital that it is extended if the full benefits of egg freezing are to be realised. The unintended consequence of the current limit is an unnecessary time pressure on women”, explained another commentator, Professor Geeta Nargund, founder and medical director of CREATE Fertility.
The law is not logical
Change might be on the horizon. “The Government is currently reconsidering the ten-year storage limit on eggs, sperm and embryos frozen for non-medical purposes. I am delighted the Government has acknowledged the need to extend the limit and launched a public consultation”, added Professor Nargund.
However pending changes in the law, the best way to prepare is to undertake the most amount of research possible, and to understand the law – what can and cannot be done. “The biggest issue people struggle with is that intention is not a determinative factor in how the law is applied and it is important to know that the law may apply in a way very different to what you expect or intend – don’t assume it follows intuition”.
Life after death – USA
In the US, an emerging area is the use of genetic material following the death of a partner, explains Rubenstein. “Increasingly, we are coming across situations where typically a woman is wanting to use her late husband’s genetic material. This is permissible in all the states of the US, however for the child to have inheritance rights, the child must be born within a reasonable period – and this varies from state to state. Not only can this slow down inheritance for other beneficiaries, but it also raises questions in estate planning. Lawyers must ask: do you have any genetic material in a cryo-bank, where are the contracts with the lab? What happens on your death? It’s a contract right, so for the genetic material to be used by someone, the contract with the lab must clearly state so”.
Surrogacy and egg freezing guide. Read our advice from advisors to celebrities like Kim Kardashian
