Detailed Notes on Parenthood and the Law
4 FAMILY – PARENTHOOD Reading Notes
4.1 PARENTHOOD & THE LAW
Herrying's Concept of Parenthood Complications:
New Reproductive Technologies: As of 2014, technologies have been approved allowing a child to be genetically related to 3 or more people.
Increased Divorce Rates: It is now common for children to be raised by individuals who are not their biological parents.
Interest in Child Psychology: Lawyers increasingly understand that children may have a ‘psychological parent’—a non-genetic parent regarded by the child as their parent.
Changing Definitions of Parenthood: The societal understanding of what it means to be a mother or father is undergoing significant transformations. Deech (2000) describes men merely as ‘mobile sperm banks’ in non-traditional family contexts.
Outdated Parenthood Models: Traditional mother/father models are becoming less prevalent due to the rise of non-traditional families, including same-sex couples and thruples.
Case Study: KL v BA (2025):
Legal Clarity Achieved: Non-biological fathers cannot acquire parental responsibility.
Key Issue: Whether a father not married to the mother, who was named on the birth certificate but later found not to be the biological father via genetic testing, retains parental responsibility.
Court Deliberations:
Biological links determine paternal status; displacement of this link negates the father’s status.
Non-biological fathers cannot claim parental responsibility based on mistakes in birth registration.
Birth registration serves as evidence of parentage, with such claims resolved judicially.
Judgment: KL had not actually acquired parental responsibility despite being listed as the father, thus no removal of such responsibility was necessary.
Case Study: ED v MG (2025):
Ruling: ED could not be recognized as D’s legal parent under English law or the Human Fertilisation and Embryology Act 2008 (HFEA 2008) due to the use of anonymous donor sperm at an unlicensed overseas clinic.
Importance of Registration: Simply being noted on a birth certificate does not confer legal parenthood.
Child Arrangements: A detailed child arrangements order was made acknowledging ED’s significant psychological and social role in D’s life despite the legal limitations.
4.2 LEGAL PARENTAL STATUS
4.2.1 Assisted Reproductive Technologies (ART)
Human Fertilisation and Embryology Act 2008 (HFEA), Sections 33, 35-37, 42-44, 54:
S33 – Definition of ‘mother’:
(1) The woman who has carried the child due to embryo or sperm placement is treated as the mother.
(2) This doesn’t apply if the child is treated as not the woman’s child due to adoption.
(3) The location at which the embryo or sperm placement happens does not matter.
S35 – Legal Status of a Married Woman’s Partner:
A husband (or male civil partner) of a woman receiving donor sperm treatment is considered the legal father unless there’s proven lack of consent.
Consent is presumed; the burden of proof falls on the disputing party.
S36 – Conditions for Unmarried Men to Attain Legal Fatherhood:
S36 applies only if no automatic parenthood exists via Sections 35 or 42.
Requirements for legal fatherhood under this section include:
The treatment must occur at a licensed UK clinic.
Both parties must give written, informed consent and agree to the father being treated as such.
The man must be alive at treatment time.
The use of the donor sperm must be confirmed.
4.2.2 Surrogacy
Section 54 – Parental Orders (Two Applicants):
Use: Section 54 provides the mechanism for transferring legal parenthood from the surrogate (birth mother) to the intended parents.
Conditions:
The child must not have been carried by one of the applicants.
At least one applicant’s gametes must have contributed to the embryo.
All statutory conditions must be met.
Eligibility: Involves married couples, civil partners, or partners in an enduring family relationship.
Application Timing: Must apply within 6 months of the child’s birth, with some exceptions.
Consent Strategies: Requires unconditional consent from all legal parents and the surrogate; consent must be free and informed without undue influence.
Financial Considerations: No payments beyond reasonable expenses unless court approved.
Surrogacy Considerations
S54A – Parental Orders (One Applicant):
This provision allows a single intended parent to obtain a parental order under similar conditions as S54, but the structure allows for one applicant only.
The same application processes and restrictions apply as noted under S54.
Case Law Reflections:
Courts have shown willingness to interpret statutory requirements flexibly when child welfare is at stake, often prioritizing child rights and welfare above strict adherence to legal formalities.
4.3 GENETIC PARENTAGE, IDENTITY & THE ‘RIGHT TO KNOW’
4.3.1 Declarations & Enforcement
S55A – Declarations of Parentage:
Jurisdiction: Anyone can apply to a High Court or Family Court for a declaration relating to parentage if they have a significant personal interest.
Welfare Considerations: The court can refuse applications if it’s against the child’s best interests.
4.3.2 Rights to Know Parentage
Child’s Rights: Legal rights do not affirmatively grant a right to know genetic parentage, reflecting a tension between parental privacy rights and children’s identity rights.
Courts have begun acknowledging children's rights not to be forced to discover their genetic origins, highlighting their autonomy in choosing if and when to know their roots.
Recent cases reflect a growing recognition of children's perspectives as critical in parental rights disputes, as courts increasingly consider the best interests of the child in contentious parentage situations.
Proposed Reforms
Intent-Based Parenthood: Advocacy for recognizing legal parenthood based on mutual intent, especially when parties jointly undertake a parental project.
Acknowledge Multiple Legal Parents: Calls for recognizing complex family dynamics involving multiple legal guardians in legal documentation for clarity and justice.