A more recent version of these Who Is A Parent notes – written by Oxford students – is available here.
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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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