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Family law, modern families and the Archers

Posted: 28/11/2018

The Archers, is the world’s longest running radio series broadcast on Radio 4. It started as an everyday story of country folk and has been running since 1950.  However despite being on the radio for the last sixty eight years, the Archers story lines have managed very well to keep up with societal changes and modern mores.

Few Archers devotees will forget the plotline of Rob Tichener and Helen Archer whose relationship started in 2013.  The long running and slowly unfolding story charted Rob’s increasing coercive control over Helen to the point where Helen snapped, stabbed Rob and a prison sentence initially ensued.  It was later recognised that Helen was the victim of coercive control and this plotline chimed with the introduction of the offence of coercive control which came into force in December 2015.  This new legislation has already led to many cases being heard by the criminal courts and family lawyers need to be alive to these offences amongst their own client base.

More recently, we have the storyline of the romance between Lexi, (a Bulgarian fruit picker) and Roy Tucker (who works at the local hotel in Ambridge).  The relationship seemed to be going very well but Lexi threw a spanner in the works when she volunteered to be a surrogate for local gay married couple, Adam Macey (a farmer) and Ian Craig (head chef at the same hotel). Adam and Ian had initially turned to Helen whose first son Henry had been born through an artificial sperm donor, but Helen decided it may be too much for her to go through given recent past events.

Lexi has not been keen to use her eggs, so it is likely that the eggs will come from an egg donor in this country and there have been references in some episodes to an anonymous fertility clinic. This does mean that the birth mother of any child born as a result of a successful surrogacy will be identifiable once the child reaches 18. Lexi has recently come back from Bulgaria where she has spent some months with her teenage daughters and has now ended the relationship with Roy but still reassures Adam and Ian that she wishes to proceed with the surrogacy, despite her obvious unhappiness.

This storyline may highlight some of the problems with the current law of surrogacy in this country. Under the Surrogacy Arrangements Act 1985, commercial surrogacy is illegal in the UK and it is a criminal offence under this Act to advertise either for a surrogate or to be a surrogate. The Human Fertilisation and Embryology Act 1990 permitted surrogacy but only on an altruistic basis. At that time only married heterosexual couples were able to apply for parental orders in respect to the babies born from surrogacy arrangements. Parental orders transfer legal rights from the birth mother to the intended parents. In 2008, the Human Fertilisation and Embryology Act enabled same sex couples in a civil partnership to apply for parental orders. Now same sex couples or heterosexual couples in an enduring family relationship can apply for such orders.

Although Lexi will be able to claim expenses in relation to a pregnancy, any agreement that she enters into with Adam and Ian will not be legally binding and she will remain the child’s mother at birth and until Adam and Ian are able to apply to a court to transfer parental responsibility from Lexi to them. It is possible that after the birth, Lexi may change her mind, in which case a court will have to consider what is best for the child applying the welfare principles under the Children Act.

It is clear that things can go wrong with such arrangements. From May this year, the Law Commission of England and Wales has been working on a review of the laws around surrogacy. Chief Commissioner, Professor Nick Hopkins says that “Our society has moved on from when surrogacy laws were first introduced 30 years ago and, now, they are not fit for purpose… now we want all those with an interest to get involved and help us make the law fit for the modern world”. This review is expected to last two to three years and a mid-way report is due in May 2019. 

Interestingly, in Bulgaria, France, Germany, Italy, Portugal and Spain all forms of surrogacy are prohibited and in Canada, Denmark New Zealand and Australia, as in England, for profit surrogacy is prohibited but altruistic surrogacy can be permitted. 

For those wishing to take part in the Government consultation process, the link to participate is here.  

For fellow Archers fans, we will just have to wait to see what plot twists will unfold for Lexi, Adam and Ian and hope that a surrogate baby will be safely born next year.

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