family - legal parenthood 3 HFEA

HFEA - assisted reproduction rules

Who is the legal mother when the genetic, gestational and social motherhood is located in more than one woman?

The legal mother is the gestational mother - s 33(1) of HFEA 2008

When does the HFEA 2008 apply when determining paternity?

Applies when s 34 has been satisfied - the child ‘is being or has been carried by a woman as a result of the placing in her of an embryo or of sperm and eggs or her artificial insemination’

Artificial insemination includes both treatment at a clinic and DIY arrangements.

Determining paternity - fathers who are in a formalised relationship with the mother

Heterosexual couple in formalised relationship + using another man’s sperm = the mother’s spouse is still the legal father unless he did not consent to the treatment - s 35(1).

Mother’s spouse must prove absence of consent. If this evidence is not counterbalanced, it will prevail, however weak it is.

*s 42 applies to other female parent

What must the mother’s spouse have consented to under s 35(1)?

The husband/ civil partner must have consent to the particular treatment that is given - Leeds Teaching Hospital NHS Trust v A (black and white couple, mixed-race twins).

Determining paternity - fathers who are not in a formalised relationship with child’s mother & where donor sperm is used

The man will be the father if the agreed fatherhood conditions are met in s 36 of HFEA 2008 -

• the assisted reproduction must have taken place at a licensed clinic in the UK.

• the mother and putative father must both have notified the licensed clinic in writing that they consent to the man being treated as the legal father of any resulting child.

• this notification must not have been withdrawn by either party at any point up to the point of embryo transfer or insemination of the woman with the eggs and/or sperm.

• the mother must not have provided a written notice to the clinic consenting to another man or woman being treated as the legal father or second parent of the child before the point of the embryo transfer or insemination + the other person must themselves satisfy the agreed parenthood conditions.

• partners must not be within prohibited degrees of relationship in relation to each other.

Determining parenthood - where a woman unmarried and not in CP with legal mother received fertility together with her female partner (s 43)

The other woman will be treated as the legal parent of the child if the agreed female parenthood conditions apply according to s 43 - which are identical to those listed in s 36 for unmarried fathers

• licensed clinic in UK

• written notice signed by the person giving it and given to licensed clinic

• no withdrawal of consent

Do sperm and egg donors have legal parenthood?

Where either s 35, 36, 42, or 43 applies, no other person is to be treated as the father of the child.

But, even if these do not apply, where the sperm donor has given consent, the man is not to be treated as the child’s father - s 41. The child will be legally fatherless.

s 47 for egg donors

Why has ‘the child’s right to know their genetic parentage’ been supposedly compromised?

Legislation over assisted reproduction seems to prioritise social parenthood over genetic parenthood. Seems that genetic parentage is not all that important anymore

What are the different kinds of surrogacy?

Traditional surrogacy - involves using the surrogate’s own egg.

Full surrogacy - where either the egg of the intended mother or a donor egg is used, so surrogate has no genetic connection to the child.

Surrogacy arrangement - who is the child’s legal mother?

The surrogate, because she has given birth to the child (s 33), even if the intended mother is the genetic mother.

Surrogacy arrangement - who is the child’s legal father? Unmarried surrogate and genetic father is the intended father

The genetic father is the legal father, according to the common law principle.

Surrogacy arrangement - who is the child’s legal father? Surrogate in formalised relationship but intended father is genetic father

Will give rise to the common law presumption that the surrogate’s husband is the child’s legal father.

The intended husband (even as the genetic father) will need to rebut the presumption by showing surrogate’s partner did not consent (s 35).

Surrogacy arrangement - who is the child’s legal father? Surrogate not in formalised relationship and donor sperm is used

The intended father will be legal father IF he satisfies the agreed fatherhood conditions under s 37.

Surrogacy arrangement - who is the child’s legal mother? Surrogate not in formalised relationship and donor sperm is used

Will be regarded as a complete legal stranger to the child, UNTIL a parental order is put in place (s 54 and 54A)

What does a parental order under s 54 (couples) and s 54A (sole-applicant cases) do?

Gives the intended parents legal parenthood, and extinguishes the legal parenthood of the surrogate (and her husband, if applicable).

Where a parental order cannot be made, e.g. due to lack of consent from surrogate, what can be done?

Where a s54 parental order cannot be made, the intended parents can pursue an adoption order under the ACA 2002 to become the legal parents.

Or, they could apply for a child arrangements order where the child lives with them under s 8 of the CA 1989. Or they can apply for orders under the court’s inherent jurisdiction - but these methods will not affect the child’s legal parentage.

How have the relationship requirements in subsection (2) been interpreted by the courts?

An ‘enduring family relationship’ is not required to be a particular length, so if applicant only entered into it after one of the parties already entered surrogacy arrangement, as long as it is stable this will suffice - Re F and M (Thai Surrogacy: Enduring Family Relationship) (2016).

The applicants do not need to still be in such a relationship when the application is made and when the order is made.

Interpretation is in light of ECHR’s Art.8

How has the requirement that child be living with the applicants in subsection (4) been interpreted by the courts?

Applicants who separate during the application process can still obtain a parental order where the child is spending time in both households (Re X (A Child: Foreign Surrogacy) [2018]).

Is the time limit requirement in subsection (3) of s 54 parental order a strict one?

It says the application must be made within 6 months of the child’s birth, but in light of the ECHR, the time limit can be extended by the court in an appropriate case - Re X (Surrogacy: Time Limit) 2014.

This has been stretched even further where parental orders are made in relation to children aged 12 and 13 y.o; and a 23 y.o adult.

What does the guidance say on revoking a parental order?

This is dealt with in G v G (Parental Order: Revocation)(2012).

The bar is very high when seeking to revoke a PO since it gives lifelong legal status to the child and intended parents.

Child’s welfare is a relevant consideration - the consequences, the ease of finding a suitable alternative order to secure the intended parent’s position.

How have disputes where the surrogacy agreements break down been handled by the courts?

They take each case on its facts, applying the welfare principle the best they can.

Take into account the circumstances of the surrogacy agreement; and the reasons for surrogate’s refusal to continue with agreement.