A more recent version of these Private Law Children notes – written by Oxford students – is available here.
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Supervision 4 - Private Law Children Legal Parentage
2. Mother a. The gestational woman is the legal mother per Ampthill Peerage Case.
3. Father a. The common law presumption that the law follows genetics unless married per Re B (Parentage). The only exception is the sperm donor per s41 HFEA. b. A father can have his parentage declared under s55A FLA 1986 which allows the child to be legitimised under s2 Legitimacy Act so can be re-registered, but mother's consent is required per s10A BMDA 1953. c. Law Commission opposed presumption of paternity in cohabitation as unlike marriage, cohabitation is not easy to prove. But this exists in the commonwealth. Assisted Reproduction
1. There is no general right to assisted reproduction per Dickeson v UK (life imprisonment) Evans v UK (sperm destroyed after separation).
2. Legal mother is the gestational mother per s33 HFEA.
3. Father is determined by (i) marriage to gestational mother per s35 HFEA (ii) If unmarried, his sperm was used in a licensed clinic and under agreed conditions per s36 HFEA.
4. A second lesbian mother is determined if the gestational mother isn't married per s35 and the insemination was done in a licensed clinic under conditions per s42 HFEA.
5. The egg donor (s47) and sperm donor (s41) are not legal parents. Thus the genetic mother is in the weakest position.
6. The Act is strongly functional. It is unconstrained by genetics, sexuality or gender.
7. However, Bainham says it may lead to problems with identity as the child may be wrongly registered as a couples' without recognition of the assisted reproduction. Surrogacy
* Surrogacy contracts are unenforceable per s1 Surrogacy Arrangements Act 1985. You can grant reasonable expenses including a flat per X&Y (Foreign Surrogacy).
* But for parentage, look to HFEA. Note they must go to a licensed clinic so leading charities and agencies fall outside the scope.
* So surrogate mother is legal mother per s33 HFEA.
* If unmarried, genetic father can rely on the presumption of genetics. Or if his sperm wasn't used, he can use s36 HFEA with agreed fatherhood conditions.
* If married, commissioning father will have to rebut the presumption in s35 HFEA.
* Commissioning mother is a legal stranger to the child.
* Under s54 HFEA a Parental Order confers legal parenthood on commissioning parents. The applicants must be at least unilaterally related to the child, married/CP/enduring relationship, and impregnated by artificial means to avoid 'adultery' in DIY attempts. Child must be living with surrogates so legal mother must voluntarily surrender. Unlike adoption the courts cannot override the mother's renege. In A v C it was held mere genetic link was insufficient to justify 12
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