English law – parentage

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Who are a child’s legal parents?

The current law

Case studies

Surrogacy

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Who are a child’s legal parents?

The answer to this seemingly simple question is not always as straight-forward as might be expected in situations involving assisted reproduction. When we talk about a child’s mother we can mean: When we talk about a child’s father we can mean: Paternity has been problematic historically as before genetic testing a man could never be absolutely certain of his status as (genetic) the father of a child. As property and inheritence was passed down through the male line a definition was required. This was that the legal father of any child born to a married woman was her husband. So a child born to a woman hows genetic father was not her husband would be the child of her husband (ie not the genetic father). Equally a child born to a man’s mistress had no legal father (assuming the woman was not married).

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The current law

So paternity is a more complex issue than maternity. Here are the relevant passages from the HFEAct 1990: HFEAct 1990 section 27(1) The woman who is carrying or has carried a child as a result of the placing in her of an embryo or sperm and eggs, and no other woman, is to be treated as the mother of the child. The man who’s sperm was used is the father. However where:

(a)The sperm of a man who has given consent as required by paragraph 5 of Schedule 3 to this Act was used for a purpose for which such consent was required, or

(b)The sperm of a man, or any embryo the creation of which was brought about with his sperm, was used after his death

He (sperm donor) is not to be treated as the father of the child. [HFEAct 1990 section 28(6)] Basically this means that sperm donors are not the legal father. However, under new regulations a child born of donated sperm can, on turing 18years old, can ask for information regarding the donor father. For donations made after April 2005 this information includes the identity of the donor. So: HFEA 1990 section 28(1)(2)(3) (1) This section applies in the case of a child who is being or has been carried by a woman as the result of the placing in her of an embryo or of sperm and eggs or her artificial insemination. (2) If:

(a) at the time of the placing in her of the embryo or the sperm and eggs or of her insemination, the woman was a party to a marriage, and

(b) the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage, then, subject to subsection (5), the other party to the marriage shall be treated as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or the sperm and eggs or to her insemination (as the case may be).

(3) If no man is treated, by virtue of subsection (2) above, as the father of the child but—

(a) the embryo or the sperm and eggs were placed in the woman, or she was artificially inseminated, in the course of treatment services provided for her and a man together by a person to whom a licence applies, and

(b) the creation of the embryo carried by her was not brought about with the sperm of that man, then, subject to subsection (5), that man shall be treated as the father of the child.

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Case studies

Genetic parents: Leeds Teaching Hospital v. A. [2003] Mr and Mrs A and Mr and Mrs B all attended a licensed clinic for infertility treatment. Somehow, Mrs A’s eggs were fertilised by Mr B’s sperm and before the mistake was realised the resulting embryo was placed in Mrs A and she gave birth to twins. The legal parents were Mrs A and Mr B (even though Mrs A was married to Mr A at the time, and indeed still is). Mr B could not be regarded as a sperm donor and was therefore not exempt under HFEAct 1990 section 28(6)(a) (6) Where—

(a) the sperm of a man who had given such consent as is required by paragraph 5 of Schedule 3 to this Act was used for a purpose for which such consent was required Mr A was not the father as he had not consented to the treatment with Mr B’s sperm.

Couple split during treatment: Re D [2005] D and her male partner B attended a licenced fertility clinic seeking reproductive services. They signed the relevant paperwork and commenced treatment. An embryo was created. Before it was implanted the couple seperated. D formed a new relationship with S. The embryo is implanted and a child born. Who is the father? Legally the child has no father. HFEAct 1990 section 28(3): (3) If no man is treated, by virtue of subsection (2) above, as the father of the child but—

(a) the embryo or the sperm and eggs were placed in the woman, or she was artificially inseminated, in the course of treatment services provided for her and a man together by a person to whom a licence applies, and

(b) the creation of the embryo carried by her was not brought about with the sperm of that man, then, subject to subsection (5) below, that man shall be treated as the father of the child.

For this to apply it must be shown that a couple are receiving treatment together at the time of implantation. Who decides if a couple are receiving treatment together? The clinic? The fatehr? The mother? It is unclear.

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Surrogacy

A surrogate mother agrees to carry a child for another women (comminsioning mother) on the understanding the child is handed over to the commisoning mother shortly after birth. Surrogacy for finacial gain is illegal under English law. Indeed surrogacy for any reason is not enforcable: Surrogacy Arrangemtns Act 1985, section 1A: No surrogacy arrangement is enforceable by or against any persons making it.