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Embryology Law: A Specialist Area or a Trap for the Unwary?

Robert Stevens offers a short reminder of why family lawyers should take note of the HFEA and its successor currently going through Parliament.

Robert Stevens, Barrister

There has been much in the news about the current Human Fertilisation and Embryology Bill, but some family lawyers may consider that this is a specialist subject and so not really relevant to their practice. The same view might be taken of the current Human Fertilisation and Embryology 1990, but case-law to date serves to illustrate how the 1990 Act (and the future Act) might take someone by surprise!

Let's say a 'father' faces an application for a liability order under the Child Support Act 1991. Re M (Child Support Act: Parentage) [1997] 3 FCR 383; [1997] 2 FLR 90 concerned AID/donor sperm. The child concerned was born prior to the coming into force of either s 27 Family Law Reform Act 1987 or s 28 Human Fertilisation & Embryology Act 1990 (which replaced s 27 of 1987 Act) and therefore, he was not a parent for the purposes of the Child Support Act 1991. Section 27 HFEA did not have retrospective effect.

In another case, Re M (Sperm Donor: Father) [2003] Fam Law 94, a man responded to an advertisement from a lesbian couple. He donated his sperm on a do-it-yourself basis outside of the realms of a licensed clinic. He was chased for maintenance. It was held that the HFEA 1990 rule that excluded sperm donors from being regarded as fathers did not apply to this sort of circumstance. The man was genetically and therefore legally the father.

Other problems relating to parentage occurred in Re G (Surrogacy: Foreign Domicile) [2007] EWHC 2814 where the decision turned upon the construction and application of provisions of the 1990 Act.

Relationships sadly break down and as a result there are many applications for contact. Fathers can apply as of right, but mothers might object on the basis he is not really the father and seek as in Re CH (Contact)(FD) [1996] 1 FCR 768 to deny him contact on the ground that he did not have a biological link with the child.. Even after the new Act, this case will be relevant, depending, of course, on the rewriting of the rules relating to determining parentage. In that case it was held that it is not genetic ties but legal bonding which is determinative of contact issues.

In conclusion, therefore, family lawyers need to be aware of the present and the future legislation, lest it catch them by surprise.

Robert Stevens will be writing a guide to the HFE Bill currently in Parliament for publication on Family Law Week after the Bill has received Royal Assent

He also lectures regularly on family law, including embryology, and can be contacted at rstevens@blueyonder.co.uk