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13 April 2009

Parenthood and the Human Fertilisation and Embryology Act 2008

Commentary by Julie McCandless, Lecturer in Law at Oxford Brookes University, and Sally Sheldon, Professor of Law at Kent University, published on BioNews.

The new ‘status provisions’, regulating who shall be treated as the parent of a child conceived via donor insemination and/or IVF, come into effect this week. In this commentary we outline how the Human Fertilisation and Embryology Act (2008) has reworked these provisions and raise a number of issues relating to them.

As was previously the case, under the 2008 Act, the woman who gives birth to a child will be treated as the legal mother, subject to adoption law (s33). This is true whether or not she is the child’s genetic mother. Likewise, the 2008 Act retains the presumption that a woman’s husband is the legal father of any child born through licensed treatment services, unless it can be shown that he did not consent to the procedure (s35). The 1990 Act also made provision for unmarried male partners to achieve legal fatherhood through receiving licensed treatment ‘together’ with a woman. This notion of ‘treatment together’ has now been replaced with a series of formal consent requirements called the ‘agreed fatherhood conditions’ (ss36-37). Like the 1990 Act, the 2008 Act states explicitly that a child may have only one father (s38); that the common law marital presumption of paternity is saved (s38); and that men who donate sperm under the relevant consent provisions contained in the legislation are not the legal fathers of children born from the use of such sperm (s41). Finally, the 2008 Act incorporates the provisions of the Human Fertilisation and Embryology (Deceased Fathers) Act 2003, allowing for the posthumous registration of a man as a child’s father, whether or not his sperm was used (ss39-40).

The most significant innovation in the reformed status provisions is with regard to lesbian couples. In direct parallel to the fatherhood provisions described above, a woman’s Civil Partner will now be the presumed ‘female parent’ of any child born to her partner unless it can be shown that she did not consent to the procedure (s42). Where no second parent is established under s42, a female partner can also achieve legal parenthood when the ‘agreed female parenthood’ conditions are met (ss43-44). If a child is deemed to have a female parent under the 2008 Act, no man is to be treated as the father of the child (section 45). Again, the common law marital presumption is retained (section 45) so that the provisions relating to female parenthood will not apply to a child deemed the legitimate child of the parties to a marriage. The posthumous provisions are also extended to female parents (section 46). Finally, the 2008 Act explicitly prohibits a woman from being considered as a parent of a child whom she has not carried ‘merely because of egg donation’.

A number of points can be made about these provisions. Firstly, like the 1990 Act, the 2008 Act provides that the presumption of legal parenthood of husbands (and now Civil Partners) will apply even when donor insemination takes place in a non-licensed setting, so long as insemination is ‘artificial’ rather than through sexual intercourse. In contrast, it is clear that the ‘agreed father/female parenthood provisions’ apply only in the context of licensed treatment. So, when two people are not in a legally celebrated union, the only way they can avail of these provisions is in the context of treatment services received in a licensed clinic: other arrangements will be subject to common law, which attributes parental status in a different way. These distinctions also raise interesting questions for birth registration: for example, will registrars require evidence of licensed treatment from unmarried and unregistered couples seeking to register a birth? Experience under the 1990 Act would indicate that generally they will not, unless something specific makes them doubt the truth of claims made by people seeking to register a birth.

Secondly, the legislation does not specify what the relationship between ‘the mother’ and the ‘agreed parent’ should be, beyond stating that they must not be within the degrees of relationship prohibited by incest law. Therefore, while we have been using the term ‘partner’ throughout this commentary, the provisions are not restricted to partners in a sexually intimate sense. There is nothing in this legislation that would prevent two friends from seeking treatment together and being registered as a child’s parents. What the ‘agreed parenthood conditions’ do prohibit, however, is a mother or daughter, or a brother and sister from being treated as a child’s legal parents.

Thirdly, while female parents are treated in the main as parallel to fathers, there is a significant difference: the legislation prohibits the grounding of female parenthood on the basis of the genetic link. If a man donates sperm to his partner for treatment, he is the presumed father because of the genetic link and the ‘agreed parenthood’ provisions do not apply. When a woman donates an egg to her partner for treatment, she is considered as an ‘egg donor’. This has clear practical consequences: should the intended mother nominate another person to be the agreed father or female parent before the embryo made from her (ex) partner’s egg is implanted, the clinic is under no obligation to tell the woman who donated the egg. While the consent provisions relating to the use of gametes allow the woman to revoke consent for the use of her donated egg(s), there may be situations where she does not realise she needs to do this. Such issues will have to be explained very clearly when taking consent, given the precarious legal position in which these women find themselves.

Fourthly and more generally, this indicates the tensions inherent in attempting to provide an adequate legal framework for same sex parents through simply reading over the provisions designed to deal with heterosexual parents (1). Such parallel treatment reflects what we would describe as a kind of ‘parental dimorphism’ implicit in the status provisions: the child will have no more than one mother and one father/female parent. But what is a female parent if not a mother?

Finally, it should be noted that the changes to the parenthood provisions in the 2008 Act received very little scrutiny in a reform process that runs to thousands of pages of published documentation and almost 100 hours of Parliamentary debate. In this light, it is unsurprising that it was five months after the legislation was passed before the Daily Mail realised the ‘consequences’ of the new parenthood provisions (2). This means that many significant decisions made by the drafters of the legislation remained largely unscrutinised. For example, there was no significant discussion of whether the distinction between married/registered and unmarried/unregistered couples should remain, given the general erosion of this distinction elsewhere in family law. Nor was there debate of whether female parenthood might not also in some circumstances be grounded in a genetic link. Note also that the status provisions are not extended to male same-sex couples: this was made inconceivable by the grounding of motherhood in gestation combined with the impossibility of recognising more than two legal parents (again, neither of these assumptions were questioned). As such, while the 2008 Act may have gone some way to ensuring ‘a solid base on which to regulate 21st century practice within 21st century law’ (3), it is also clear that this process has opened up as many new questions about parenthood law as it has solved.

(1) See further Alison Diduck (2007) “‘If only we can find the appropriate terms to use the issue will be solved: Law, Identity and Parenthood” 19(4) Child and Family Law Quarterly 458.

(2) Fiona MacRae, ‘Another blow to fatherhood: woman can name ANYONE as “father” on birth certificate’ (21 March 2009).

(3) Lisa Jardine, Chair of the Human Fertilisation and Embryology Authority, press release dated 13 November 2008, available here

Parenthood and the Human Fertilisation and Embryology Act 2008. BioNews, 6 April 2009

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