Who Is A Parent Notes

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

  • 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

  • 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

  • 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)

        • 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

  • This does not apply to unmarried co-habitants

  • 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

  • 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

  • If the parties are unmarried, the obligation falls on the mother alone

    • While the father can be registered, the space can be left blank

      • At which point F can only added by proving genetic fatherhood through a court order, or if M consents

  • DoW&P: Should encourage unmarried parents to register together

    • Herring: unworkable plans – 84% already do so anyway, and would need get outs – impracticable, unknown or unreasonableness

      • Imposing a sanction on M for deliberately not disclosing is all very well, but how do we know that M is not telling the truth that she doesn’t know?

• Presumed from parental responsibility

  • Lord Chancellor Consultation Paper: This will lead to presumption of fatherhood

  • R v Sec State Social Security ex p West: Parental responsibility order by consent can be regarded as evidence of paternity by Child Support Agency.

• Inferred from the facts of the case

  • If it is agreed M and F slept together at around the time the conception is said to have taken place, then can “presume” fatherhood this way.

4. The person has had an adoption order or parental order made in his favour

• Surrogacy

  • Parental order needs to be applied for, which treats those applying as if they had always been the parents

  • BUT very hard criteria to meet - includes

    • Either the sperm, eggs or both, came from the commissioning husband or wife

    • The applicants are married, civil partner or in an enduring family relationship and are not within the prohibited degrees

    • Genetic father and gestational mother must consent fully and unconditionally at least 6 weeks after birth

    • Money or other benefits must not have been govern unless they are reasonable expenses of the court has authorised the payments

    • The pregnancy must not have been the result of sexual intercourse

    • Must be made within child’s welfare.

    • Etc.

• Adoption

  • Adoptive parents must go through stringent checks by the LA

  • The genetic/gestational parents must consent (to adoption generally) or the court must decide that inter alia, adoption is in the child’s best interests

  • Once the order is made,

    • The parents’ legal parenthood ends under s.54 HFEA 2008

    • The adopting parents are treated from that moment on (but not for the time before) as parents, not just people with parental responsibility

5. A married man who has consented to his wife undergoing reproductive treatment

• Where the woman is married at the time of the treatment, what is the status of the husband?

  • S.35(1)

    • (1)If—

      • (a)at the time of the placing in her of the embryo or of the sperm and eggs or of her artificial insemination, W was a party to a marriage, and

      • (b)the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage,

    • then, subject to section 38(2) to (4), the other party to the marriage is to be treated as the father of the child

      • unless it is shown that he did not consent to the placing in her of the embryo or the sperm and eggs or to her artificial insemination (as the case may be).

  • S. 38

    • (2) ss.35 and 36 do not affect any presumption, applying by virtue of the rules of common law, that a child is the legitimate child of the parties to a marriage

    • (4) ss. 35 and 36 do not apply to any child to the extent that the child is treated by virtue of adoption as not being the man's child.

• But a man who consents to the use of his own sperm, but someone else’s is used by mistake, is not treated as the father

  • Ferguson: note that legal parenthood not conferred on the genetic...

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