Explain the legal principles governing parentage (how parents are legally recognised) in situations such as; Infertility treatment, surrogacy, and births outside marriage as well as within marriage.
The principle statue in this area is Parent and Child (scot) Act 1986.
DNA profiling – taking a sample of blood fluid or tissue from child, mother and alleged father to establish positively if man = father. Easiest way to find out if someone is wrongly accused
Infertility treatment – When a woman becomes pregnant through some form of infertility treatment, the law deems her to be the mother when she gives birth to the child. Human Fertilisation and Embryology act 1990 s27. Infertility means not being able to get pregnant after one year of trying. Or, six months, if a woman is 35 or older.
Even when she has no genetic link to the child. So the woman who gives birth to the child for all purposes, is the mother of that child.
The man is deemed to be the father, unless he did not consent to the infertility treatment s28 (2) 1990 act. If she is Not married to the partner, then the man is deemed to be the father if the treatment has been provided to the woman and man” together” s28(3) 1990 act
The donor of sperm (and the man who has the genetic link) is in law not the father if the donation was to a licenced clinic and he consented to his donation being used for the creation of the child.
There are two situations where a child born through infertility treatment will be deemed to be legally fatherless.
- Donor of sperm has had is paternity cut off.
- When the sperm or the embryo created with the sperm was “used” after the death of the provider of the sperm. It is possible to register the dead man as the father, so long as he consented to this happening.
Surrogacy – Surrogacy Arrangements Act 1985[as amended by HFEA 1990]
“Full surrogacy” – involves the woman (surrogate) agreeing to carry a foetus, produced from the gametes (sperm and ovum) obtained from the commissioning couple with the intention that the child be handed over to the couple to be raised by them as their child.
Advertisements about surrogacy, s3
Publishing such in newspapers, periodicals, by telecommunication and otherwise per s3 (4) is offence. Guilty parties include proprietors, editors, publishers, distributors depending on the medium. Liability re-newspapers is strict. Liability for telecom ad requires knowledge of content person conveying it over the airwaves. Liability of other distributors requires knowledge of content before guilt established. But neither the prospective surrogates nor commissioning ‘parents’ are liable/guilty
Re P 1987 2 FLR 421
English case, SM changed mind & refused to hand over twins for adoption by commissioning couple, Children’s welfare paramount in ensuing litigation; SM won Maternal bond outweighed affluence & more stimulating intellectual environment offered by commissioning couple.
“Partial surrogacy” – sperm donated by husband of the commissioning couple being used to fertilise the surrogates own ovum.
A parent – child relationship can be created through a court order called a “Parental order after a surrogacy agreement. s30 replaced by s54 HFEA 2008
- no longer restricted to married couples – civil partners too
- or cohabs in enduring family relationship [that is not within prohibited degrees]
This order may be applied for by a married couple who have commissioned a 3rd party to bear a child for them, with the 3rd party giving up child after. The couple must apply for the order within 6months of the child being born, one or the other of them must be the genetic parent of the child. If the surrogate mother refuses to give up child, the commissioning couple can do nothing about it as she is the mother.
C v S 1996 – Mr/s agreed with Ms S she would be artificially inseminated with Mr C sperm. Get pregnant and give child back. Mrs S then changed her mind and wanted child back. Held, 8K was paid for mother to consent to a parental order but not an adoption order Adoption (s) act 1978 so no contravention of Adoption act. Adoption order made in favour of Ms/Mrs C. Payment outweighed the need to safe guard X welfare throughout childhood.
Adoption – If commissioning parents wish to become full legal parents, adoption is required. This destroys the parenthood of the birth parents and creates parenthood in the adopters. A child of 12 + must consent before adoption order made.
Who is the Father?
Now S35-41 2008 act. Married woman consenting Husband = S35 If Wife unmarried or in CP the father = man who meets statutory fatherhood conditions S37 (treatment licenced in UK, man alive at the time, sperm isn’t his)
Diane Blood’s 2nd case
HFEA 2008 replaced 2003 provisions. If sperm or embryo used after death of man & woman was married to him & he consented & did not withdraw consent, woman “elects” him within 21 days [42 in rest of UK] – he is father. Equivalent rule for unmarried receiving licensed treatment together
Evans v Amicas Healthcare 2004
Couple attempting to have a child together through infertility treatment. Embryo created using Mr E sperm. Shortly separated and refused to have his embryo used to create a family. Held, she did not have a right to found a family in circumstances which imposed family life on another without his wishes. (Use another egg with another man)
Re D 2005
Woman and man married but not undergoing infertility treatment together. Child born relationship ended months before birth. Ms D argued at time to test was when embryo was implanted. So S38 of HFEA does not prevail. Which would have stated Mr was father. Held, Mr B was not father and had no title to seek contact or PRR
Father will acquire automatic PRR if he is not married but registers as father. Only applies on after 4th May 2006. Female same sex couples – HFEA treatment. Under s43 HFEA – Parent has PRR if registered as parent.
Birth mothers, married fathers. From 4th may 2006 unmarried fathers who register. From April 2009 (HFEA 2008) S42 female civil partner of birth mother, woman who is parent by virtue of act.
Births inside and outside marriage
When a child is born through sexual intercourse, the law deems the mother to be the woman who conceives with her egg and gives birth to the child, and it presumes the father to be either (i) the man married to the mother at time of birth or between conceptions. Or (ii) the man who has acknowledged the child as his and who is registered in the register of births as the father under the Law Reform (parent and child) (scot) act 1986 s5.
The presumption of paternity is rebuttable, by proof of balance of probabilities of who father is. Easily established using DNA test however until the, father will be treated for all purposed as father.