Harbottle pioneers ‘preconception’ agreements for non-traditional families

Harbottle & Lewis is offering preconception contracts to non-traditional families looking to have children in the wake of a landmark High Court case that introduced the concept of principal and secondary parenting.

Linzi Bull
Linzi Bull

Harbottle senior associate Linzi Bull came up with the idea for a preconception contract after representing a gay couple involved in a hostile custody dispute that lasted for three years and was seen by 11 different judges before Mr Justice Hedley gave judgment in July 2011.

In the case, a lesbian couple and a gay couple between them had two children through IVF treatment. The foursome raised the girls happily for a number of years, with the lesbian couple as primary carers, but along the way the relationship between the two couples broke down and a bitter custody fight began.

In his judgment, Hedley J raised the problem of non-traditional families not clearly setting our their respective roles before conceiving and also the inadequacy of legal language to deal with such situations. In his judgment, Hedley J created the concept of primary and secondary parents, asking the couples to accept these roles or else go back to the court for a contact order.

According to Bull, the case was a “real warning for couples entering into artificial insemination agreements” to think about their roles before they conceive and gave her the idea of offering clients a preconception agreement service.

The agreements can be tailored to suit any kind of family and reflect their priorities, with the aim of encouraging prospective parents to discuss who would be on the birth certificate, where the child lives, what the adults will be called (mum, dad etc.) and what happens on special days like Christmas.

The agreements would not be legally binding, but would be persuasive to a court in a dispute, much like a prenuptial agreement.