ONS recently revealed that fertility rates in England and Wales have dropped to their lowest since records began. On average, women had 1.44 children between 2022 and 2023, the culmination of a decade of gradually declining birth rates. Whilst birth rates decline, the average age of first time mothers has risen to an all-time high of 30.9 years old, and for fathers 33.8 years. In addition, the number of women at ‘child bearing age’ hit its peak of 12million.
Why are fertility rates falling?
Several reasons have been touted for this record low, including the impact of the cost-of-living crisis, which had far reaching impacts during 2022-23 and its ripple effects are still being felt across England and Wales. Hopeful parents may well have been put off having children because they couldn’t afford it, as inflation rates skyrocketed. In combination with the skyrocketing mortgage rates in these years, moving to a bigger home to grow a family was not feasible for many.
The cost-of-living crisis had detrimental impacts on relationships across the board and money is often cited as a key reason for a relationship breakdown. In a survey we at Stowe Family Law conducted of the public in 2022, 80% of people said they had been affected by the cost-of-living crisis, and 60% said it had negatively impacted their romantic relationship. The primary tensions were around finances, including not being able to pay the bills, and not enough money coming in.
With this in mind, it is no surprise that birth rates dropped to such low levels as people struggled to afford their day to day living expenses.
Alongside this, women have been delaying starting a family until later in life, choosing careers, travel, and getting on the property ladder (amongst other things) over having children. However, many still want the option of having a baby when they are more settled, which has led to a dramatic increase in the popularity of egg freezing in the UK, particularly since the Covid pandemic. In fact, a survey we conducted of over 400 people in 2021 revealed that 60% of women were anxious about their chances of having a family due to Covid, and over half were considering reproductive technologies. Egg freezing came out as a top choice.
According to data from the Human Fertilisation and Embryology Authority (HFEA) in the decade between 2011 and 2021, the number of egg freezing cycles increased from around 400, to over 4000.
In 2022, egg freezing law was finally updated to allow eggs, sperm and embryos to be stored for up to 55 years, increased from only 10 years, allowing more flexibility for intended parents to decide when and how they would like to have a family.
General guidance is that women should freeze their eggs in their 20s and early 30s as these ‘younger’ eggs have more chance of success when it comes to fertilisation. Knowing there is an option to come back at a later date if women struggle to find the right partner, or want to pursue other interests before starting a family, will likely have contributed to the increasing age of first time mothers.
Fertility law in England and Wales
Egg freezing is a popular choice for those who want to delay parenthood for whatever reason, and there has been some progress in this area as a result of this growing popularity.
However, fertility law, as most family law professionals will attest, is sadly still lacking. This may contribute to the declining birth rates and the stigma that still exists around non-traditional ways of having a baby.
Methods such as IVF and surrogacy are wonderful ways to give opportunity to those who may not otherwise have been able to have a child. Yet, the complexity of the law is at best stressful, and worst, completely off-putting.
Such significant progress has been made in science and technology which has allowed more couples to use IVF to become parents. Despite this, there has been discrimination towards same sex couples, including expensive infectious disease screening for hepatitis B and C and rubella only for female same-sex couples wanting to pursue reciprocal IVF.
Earlier this year, the Government announced that this would be changed, removing the additional hurdle and significantly reducing the cost of IVF for female same-sex couples. In addition, for same-sex couples where one or both have an undetectable viral load of HIV, they will still be able to access IVF treatment. As of very recently, this has now been implemented. The Human Fertilisation and Embryology Act 1990 has been amended to reduce screening requirements, and allow same-same couples where one or both partners has an undetectable viral load of HIV, to pursue IVF treatment. This is a significant step towards reducing discrimination in fertility law.
Whilst progress has been made here, the management of legal parenthood in England and Wales is outdated…
Currently, surrogate mothers (and their spouse, if they are married), are the legal parents of a child and the law requires intended parents to apply for a parental order. This order transfers parenthood, but it is a stressful process, often taking months, and requires the consent of the surrogate mother. This has and will continue to cause problems until there is an overhaul of the system.
These options are great opportunities for couples who struggle to conceive naturally, single parents by choice, or those who have delayed starting a family, to have a baby. However, it is high time the law kept pace.
Other implications in family law
Complexities can also arise in family law if a couple freezes embryos, rather than just a woman’s eggs. It is generally advised that if the woman is in a heterosexual relationship, that embryos (using her partner’s sperm) are frozen, rather than just the eggs, as better outcomes are reported when using embryos. However, this does have the potential to cause problems down the line if the couple separates, or one partner dies. Both parties must consent to the embryos being used, or consent must have been provided for posthumous conception. This would need to be carefully navigated during any separation or divorce.
Conclusion
There could be any number of reasons for dropping fertility rates in England and Wales. Society continues to change and needs and perspectives shift, which may mean women want to wait longer to have children or forego it entirely. The impact of the pandemic and the cost-of-living crisis may continue to be felt in these areas for a number of years to come.
Nevertheless, there is certainly action to be taken in the family law space. In the meantime, it is vital family professionals understand the laws as they are and protect the wellbeing of clients who are pursuing non-traditional fertility journeys.
Liza Gatrell is a Managing Partner at Stowe Family Law
