Who Is A Parent Notes

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Who is a parent?

1. The child's mother • Amphill Peerage Case - The mother of the child is the woman who gives birth to their child • This is the case even where assisted reproduction is involved o s.33(1) HEFA 2008:  (1)The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child. • (2)Subsection (1) does not apply to any child to the extent that the child is treated by virtue of adoption as not being the woman's child. • (3)Subsection (1) applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or the sperm and eggs o This indicates that in relation to motherhood, it is the gestational rather than the genetic link which is crucial  The pain and injury of the pregnancy means that the gestational mother has given more of herself to the child than the genetic mother  The law could also be justified on the basis of legal certainty (easier to find out who gave birth than who donated the egg)  And more likely to encourage egg donation if donor is not regarded as parent.

2. The Genetic Father (where no assisted reproduction has taken place) • The person who is genetically the father of the child is the father o Unless they are a sperm donor  A man who donates sperm to a licensed clinic is not the father so long as his sperm is used in accordance with his consent • HEFA 2008 s.41(1) o Where the sperm of a man who had given such consent as is required ... was used for a purpose for which such consent was required,  he is not to be treated as the father of the child.  Also, after April 2005, children born from donated sperm can find out the identity of the donor

3. The person relying on a legal presumption of paternity which applies and has not been rebutted • If a married woman gives birth, it is presumed that her husband of the father of the child o This does not apply to unmarried co-habitants o This applies even if the conception occurred before the marriage,  or even if the marriage has ended by death or divorce before the child was born, • so long as it is proved conception occurred during the marriage. • If the man is on the birth certificate of the child, he is presumed to be the child's father o If the couple are married, there is a statutory obligation on both parties to register a child within 42 days,  or else solely the mother if unmarried

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