Fertility Journal

Changes to Legal Parenthood

On 6th April 2009, the parenthood provisions in Part 2 of the Human Fertilisation & Embryology Act 2008 came into force.  These amend the original provisions under the 1990 Act to determine legal parenthood following assisted conception treatments using donor sperm, donor eggs and donor embryos.

The new provisions are not retrospective and do not apply to treatments carried out before 6th April 2009.    This means that the provisions in the 1990 Act will still apply to those who had their treatment before 6th April 2009.

The new provisions apply to both heterosexual and same-sex couples who conceive using donor sperm, eggs or embryos.

The 2008 Act recognises that same-sex couples will have the same rights as heterosexual couples to name both partners on their child’s birth certificate.  This means that all couples can now have the same legal rights to parenthood when registering the birth of their child.

Whatever the circumstances, the birth mother is always regarded as the child’s legal mother.

Married Couples
The 2008 Act has not changed the situation for married couples.   The husband is regarded as the being the legal father of any child resulting from donor sperm, eggs or embryos, unless he explicitly states that he does not consent to his wife’s treatment.

Same-sex couples who are civil partners
Same-sex couples who are civil partners will now have the same legal rights as married couples.   This means that a partner will be regarded as being the second legal parent of any child resulting from the donor sperm, eggs or embryos, unless she explicitly states that she does not consent to her partner’s treatment.

Unmarried Heterosexual Couples

For unmarried heterosexual couples, both the prospective mother and the man who intends to be legally recognised as the father, must consent in writing to what is intended before sperm, egg or embryo transfer is performed.

Same-sex Couples who are not civil partners
The same applies to same-sex couples who are not civil partners.  Both the woman receiving treatment and her female partner who intends to being legally recognised as the second parent, must consent in writing to what is intended before sperm, egg or embryo transfer is performed.

Consent
The correct timing of consent is essential. A partner will not be recognised as the second legal parent if the relevant consent forms are not completed before sperm, egg or embryo transfer.

The relevant consent forms are: PP form: “Consent to being the legal parent” and WP form: “Consent to your partner being the legal parent”.  It is a legal requirement for centres to use these specific consent forms.   The centres’ staff will be able to explain these forms in detail.

From 6th April 2009, clinics are required to provide information to couples about the implications of consent to parenthood and to offer counselling about the implications of receiving treatment following such consent.

Withdrawal of consent
Consent may be withdrawn at any time by patients, partners and donors up to the point of transfer.  Once sperm, eggs or embryos have been transferred it is too late to withdraw consent for that treatment event.
The relevant consent form is: WC form: “Withdrawing your consent or stating your lack of consent”.
This form must be completed if patients, partners and donors wish to withdraw consent to:

  • the use of sperm, eggs or embryos, or
  • being the legal parent of any child born as a result of treatment, or
  • a partner being the legal parent of any child born as a result of   treatment.

The WC form must also be completed when a partner wishes to “state their lack of consent” to their wife’s or civil partner’s treatment and does not want to be the legal parent of any child born from her treatment with donor eggs, sperm or embryos.
In this event, the “Person Responsible” at the centre must take all reasonable steps to notify the patient in writing of the withdrawal of consent.  Treatment must be withheld until this notification has taken place.
Single women using donor sperm
The 2008 Act has not changed the situation for single women who are being treated with donor sperm or receiving embryos that have been created using donor sperm.   The sperm donor (if donating through a UK licensed clinic) will not be the father of any resulting child.

Surrogacy
It is essential that couples entering into a surrogacy “arrangement” or contract are aware that such arrangements are unenforceable as by law the mother is the person who gives birth to the baby, regardless of the origins of the egg, sperm or embryo that produced the child.  The surrogate mother can change her mind and decide to keep the baby even if it is not genetically related to her, leading to the well-publicised “tug of love” situations.

Legal parentage can only be transferred to the intended mother by a parental order or by adoption.

The legal father of a child resulting from surrogacy is the surrogate’s husband or partner, as long as he consented to her being treated.  If she did not have a partner, the child is legally fatherless.

The intended father must apply for a parental order.

Surrogacy can lead to very complex situations. Not everyone is eligible for a parental order.  Patients are therefore strongly advised to seek their own legal advice about the legal parenthood of a prospective child before entering into any surrogacy arrangement.

Sperm or embryo transfer after the partner has died
Since 6th April 2009, embryos created using sperm from the husband, partner or from a donor may not be used after his death without his written consent.  This also applies to the posthumous use of his sperm.

If the husband or male partner wishes to be treated as the father of a child after his death and have his details entered into the register of births as the child’s father, he must have consented to this in writing.  This also applies if he was not the sperm provider.

These provisions also apply to civil partners and same sex couples.

The HFEA website has a section on FAQs on the new parenthood law.  Further information can be found there.

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