Who is a parent and parental orders under the Human Fertilisation & Embryology Act 2008

Posted On: 03 September 2010

Author: Janys M Scott QC

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Janys M Scott QC has prepared a useful brief guide to parents and parental orders under the Human Fertilisation and Embryology Act 2008.

 

A BRIEF GUIDE TO WHO IS A PARENT AND PARENTAL ORDERS UNDER
THE HUMAN FERTILISATION AND EMBRYOLOGY ACT 2008


1.  Who is a parent?

The parts of the 2008 Act defining who is a parent came into force on 6 April 2009 (Human Fertilisation and Embryology Act 2008 (Commencment No 1 and Transitional Provisions) Order 2009, SI 2009/479, amended by SI 2009/2232).  The position is as follows:
Unless a parental order or adoption order is made, the woman who carries a child is treated as the child’s mother, regardless of the genetic material involved in the conception (s 33).  In a case where a child is born as a result of the placing in a woman of an embryo, or of sperm and eggs, or her artificial insemination, the term ‘father’ or ‘parent’ may have a special meaning. The rules for determining who, if anyone, is the child’s father or parent are complex.
  
(1) The usual rebuttable presumption found in section 5 of the Law Reform (Parent and Child) (Scotland) Act 1986 that the mother’s husband is the child’s father applies. The rules set out at heads (2) and (3) below only apply if that presumption is rebutted (ss 38(3) and 45(3).

(2) Where the woman was married at the time of the procedure resulting in conception, but the embryo was created using sperm from someone other than her husband, the husband is treated as the father, unless it can be shown that he did not consent to the procedure.  Similarly if the woman was a party to a civil partnership, then the other party to the civil partnership is to be treated as a parent of the child, unless it can be shown that she did not consent to the procedure (ss 35 and 42).
 
(3) If there is no one who could be treated as father or parent by virtue of head (2), and the embryo or sperm and eggs were placed in a woman (“W”) or she was artificially inseminated in the course of licenced treatment services provided in the United Kingdom then the father (“M”) or other parent (“P”) may be identified by satisfaction of certain conditions.  These are that M or P has given notice consenting to being treated as father or parent, W has given notice consenting to the person being so treated, and neither has given notice withdrawing consent, nor has W given notice that she consents to someone else being treated as father or parent.  Notices must usually be in writing.  W cannot be within the permitted degrees of relationship with M or P (see s 58(2)).  M or P must be alive at the time of the treatment.  In the case of M the creation of the embyo cannot have been brought about using his sperm (ss 36, 37, 43 and 44).

(4) Where a person falls to be treated as a father or parent under head (2) or (3), no one else can be treated as father (ss 38(1) and 45(1)).

(Continued...For full article please click on the link at the top of the page)