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Who is a Parent? The Human Fertilisation & Embryology Act 2008

The Human Fertilisation Embryology Act 2008 received Royal Assent in November 2008. Here Robert Stevens explains the provisions relating to parentage that all family lawyers need to know about.

Robert Stevens, Barrister

Introduction and Overview
The Human Fertilisation and Embryology Act 2008 will make many changes to the law relating to embryology and much of this will be very specialist in nature so far as its legal impact is concerned, but its rules on determining parentage should be known by all family lawyers because the question will frequently arise as to whom the law recognises as a parent of a particular child. This will have implications for the law relating to contact, child maintenance1 and inheritance2. The Act prescribes that where by virtue of its provisions a person is to be treated as the mother, father or parent of a child, that person is to be treated in law as the mother, father or parent (as the case may be) of the child for all purposes. It will be immediately observed that there is a significant development in statutory law - there will be individuals who will be recognised in law as ‘parents’ although they are neither ‘mothers’ nor ‘fathers’ of the children concerned. There is also a complementary exclusionary rule that excludes those who would otherwise be parents being recognized as such3. All of this will be very relevant to family lawyers.

Therefore, this article focuses on the many significant changes as to how the law in England and Wales understands parenthood and this includes the fresh provision for granting parental status following surrogacy arrangements.

The law, when brought into force, will recognise mothers, fathers and other parents under Part 2 of the 2008 Act, rather than having biological mothers and fathers at common law and adoptive parents since the Adoption of Children Act 1926 . It must also be acknowledged that following Re G (Children) [2006] UKHL 43, the common law has developed to extend, to an extent, the concept of parenthood: in that case two lesbians were both held to be parents. The new provisions sit against the backcloth of the common law and indeed recognise the common law presumption of legitimacy. The new provisions also recognise that a child gains new parents upon adoption, which will continue to be regulated by the Adoption and Children Act 2002.

Fresh provision is made for what was covered in the Human Fertilisation and Embryology (Deceased Fathers) Act 2003, but this is a highly technical subject of somewhat rare occurrence and so will only be covered in a future article if there is demand for it.

It is anticipated that the new rules relating to parenthood will be brought into force in April 2009, but that the new provision for ‘parental orders’ following upon surrogacy arrangements will not come into effect until April 2010.

Mother
The 2008 Act re-enacts the rule in the 1990 Act that a mother is a woman who has carried a child as a result of the placing in her of an embryo or of sperm and eggs. No other woman is to be treated as the mother of the child. This rule applies whether or not she was in the United Kingdom at the time of the placing in her of the embryo or the sperm and eggs. She ceases to be the mother if the child is adopted4. She will also cease to be the mother if a parental order is made.

The Other Parent
Having established who the mother is, the 2008 Act introduces some complex provisions to determine who is the other parent. ‘Other parent’ is used because the other parent may also be a woman. The complexity is implicitly acknowledged by the use of algebraic-type formulae!

W is the woman who has had placed in her an embryo or of sperm and eggs or she has been artificially inseminated. These various ways of bringing about pregnancy will, for ease of reference, be described in this article as ‘impregnated’.

If W was married5 when she was impregnated and the creation of the embryo was not brought about with the sperm of her husband, then the general rule is that the husband is to be treated as the father of the child. This applies whether or not W was in the United Kingdom when impregnated. There is an exception to this rule where it is shown that he did not consent to her being impregnated6.


If no man is treated by virtue of the above rule as the father and another woman (not W) is also not treated as a parent of the child but W was impregnated in the course of treatment services provided in the United Kingdom by a person to whom a licence applies7; at the time when she was impregnated the ‘agreed fatherhood conditions’ were satisfied in relation to a man (M); in relation to treatment provided to W under the licence, the man remained alive at that time; and the creation of the embryo was not brought about with the man’s sperm; then, as a general rule, the man is to be treated as the father8

The ‘agreed fatherhood conditions’ are

The presumption of legitimacy remains and there is a rule against a child having more than one father11

There are specific provisions applying to the use of sperm and the transfer of embryos, after the death of man providing sperm12.

Sperm and Egg Donors
In relation to sperm donors, the 2008 Act provides that where a man’s sperm has been given and used for purposes of treatment services or non-medical fertility services he is not to be treated as the father of the child. Care will need to be taken here as the ruling in Re M (Sperm Donor: Father) [2003] Fam Law 94 may still apply. In that case 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. It was decided 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.

Also, where a man’s sperm or an embryo, the creation of which was brought about with his sperm, was used after his death, he is not, subject to s 39, to be treated as the father of the child. This rule applies whether or not W was in the United Kingdom at the time of her impregnation13. There is a similar rule for egg donors14

Lesbian Couples
If at the time of W’s impregnation, W had a civil partner, then there is a general rule that her civil partner (W2) is to be treated as the other parent and the child is also legitimate. This applies whether or not W was in the United Kingdom when impregnated. There is an exception to this rule where it is shown that W2 did not consent to W being impregnated 15. Section 2 of the Children Act 1989 is amended to provide that where a child has a parent by virtue of this rule, the child’s mother and the other parent, W2, shall each have parental responsibility for the child 16.

Further provision is made for lesbians who are not civil partners. If:

and

Then the general rule is that that WII is to be treated as a parent17. The child is legitimate if WII is at any time during the period beginning with the time when W was impregnated and ending with the time of the child’s birth a party to a civil partnership with W18.  Also, where WII is regarded as a parent she is a person to whom s 1(3) of the Family Law Reform Act 1987 applies, then she, along with the mother, have parental responsibility19. If the other woman does not have parental responsibility, she can acquire it under a new s 4ZA of the 1989 Act, which provides that where a child has a second female parent, but that second parent does not have parental responsibility (because s 1(3) of the 1987 Act does not apply), that parent shall acquire parental responsibility for the child if:

(a) she becomes registered as a parent of the child under the registration of births legislation;
(b) she and the child’s mother make an agreement providing for her to have parental responsibility for the child; or
(c) the court, on her application, orders that she shall have parental responsibility for the child.

If a residence order is made in favour of a woman who is the other female parent and if she does not have parental responsibility, the court must make a parental responsibility order under s 4ZA of the 1989 Act20

The ‘female parenthood conditions’ are

Only Two Parents
There is a rule against a child having 3 parents, albeit that this rule does not sit easily with Re G (Children) [2006] UKHL 43 which recognised the potential of a number of psychological parents. Where a female civil partner or a second female partner is treated as a parent, no man is to be treated as the father of the child. The child is legally fatherless. This would mean that the biological father would require leave to apply for a contact order. This rule does not sit easily with the thinking that a child has a right to know his identity, which includes knowing his biological parental background (see Mikulic v Croatia [2002] 1 FCR 720 and R (Rose and another) v Secretary of State for Health and another  [2002] EWHC 1593; [2002] 3 FCR 731). Indeed, there are detailed rights to request biological background information in the new ss 31ZA-F of the 1990 Act.

Parental Orders: Fresh Provision
The law relating to transferring the status of parentage from a surrogate mother (and sometimes also her husband) to commissioning parents was regulated (and will continue to be regulated until the new provision becomes effective) by s 30 of the Human Fertilisation and Embryology Act 1990 and the Adoption Act 1976 (as modified)21

The new parental order extends to commissioning civil partners of both genders and to some couples who are not married/not civil partners. This introduces consistency with those couples who can now adopt under the 2002 Act. Section 54 provides that an application may be made by ‘two people’ for an‘order providing for a child to be treated in law as the child of the applicants’.  The application constitutes ‘family proceedings’ for the purposes of the Magistrates’ Courts Act 198022. The ‘two people’ must be husband and wife, civil partners of each other, or two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.

Certain further criteria must be satisfied.

(a) the child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination23,
(b) the gametes of at least one of the applicants were used to bring about the creation of the embryo,
(c) the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born.

There is an exception to this in s 54(11) to cover the situation where the child was born before s 54 comes into force and the couple could not apply under s 30 of the 1990 Act because they were not married. Section 54(11) requires careful reading. It provides for an application by two persons who, throughout the period applicable under 30(2) of the 1990 Act, were not eligible to apply for an order under that section in relation to the child may be made within the period of 6 months beginning with the day on which s 54 comes into force.

At the time of the application and the making of the order the child’s home must be with the applicants, and either or both of the applicants must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man. This has already caused problems in practice under the 1990 Act, see Re G (Surrogacy: Foreign Domicile) [2007] EWHC 2814. In that case the Court expressed concern that an agency working in the surrogacy field was not aware of one of the basic requirements needed to obtain a parental order.

At the time of the making of the order both the applicants must have attained 18 years.

Both the woman who carried the child, and any other person who is a parent of the child but is not one of the applicants (including any man who is the father by virtue of section 35 or 36 or any woman who is a parent by virtue of section 42 or 43)24, have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order. The agreement of the woman who carried the child is ineffective for the purpose of that subsection if that agreement is given by her less than 6 weeks after the child’s birth. Note, however, that the agreement of a person who cannot be found or is incapable of giving agreement is not required.
 
No money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the applicants for or in consideration of the making of the order, any required agreement, the handing over of the child to the applicants, or the making of arrangements with a view to the making of the order, unless authorised by the court.

The recently made Allocation and Transfer of Proceedings Order 2008 (SI 2008 No 2836) will require amendment because that refers to s 30 of the 1990 Act.

Like adoption orders made under earlier legislation, parental orders made under s 30 of the 1990 Act remain effective25

Conclusion
In every aspect of family law, the question of parentage will have to be correctly answered.
_________

NOTES
1 See 2008 Act, sch 6, paras 32 & 36
2  S 48(5). However, there are special exclusionary rules relating to the succession to dignities or titles of honour in s 48(7).
3 S 48(1) & (2)
4 S 33
5 Marriage is effectively defined in s 49 and civil partnership in s 50. These sections should be consulted in the less obvious situations.
6 S 35
7 The case-law on similar criteria in the 1990 Act was strict. The same approach is likely to be taken.
8 s 36
9 For forms of notice, see s 37(2) & (3).
10 S 37
11 s38
12 Ss 39-40, 46, 48(3) & (4)
13 s 41
14 s 47
15 ss 42, 48(6)(a)
16 1989 Act, s 2(1A) inserted by 2008, sch 6, para 26
17 s 43
18 s 48(6)(b)
19 1989 Act, s 2(1A) inserted by 2008 Act, sch 6, para 26. Section 1 (3) of the 1987 Act, which covers children whose father and mother are to be taken to have been married to each other at the time of the child’s birth and so render them legitimate has been extended to cover the circumstances of female civil partners – see 2008 Act, sch 6, para 24.
20 1989 Act, s 12 as amended by 2008 Act, sch 6, para 28
21 The Adoption and Children Act 2002 (Commencement No. 10
Transitional and Savings Provisions) Order 2005 (SI 2005 No 2897)
22 2008 Act, sch 6, para 20.
23 It would seem that the transfer of a womb into the carrying woman falls outside s 54.
24 These sections are covered above.
25 S 57(4)