A review of The Human Fertilisation and Embryology Act 2008

The Human Fertilisation and Embryology Act (HFEA) 2008

The Human Fertilisation and Embryology Act (HFEA) 2008 received Royal Assent on 13th November 2008 and amends the Human Fertilisation and Embryology Act 1990. 

The HFEA operates within an advancing, complex, ethically challenging and controversial area of science and law.  The 2008 Act sought to update the law to ensure that it is fit for purpose in the 21st century.  The Act changes the law on legal parenthood following fertility treatment, carried out after 6th April 2009.

One of the key provisions of the Act is that it recognises same-sex couples as legal parents of children conceived through the use of donated sperm, eggs or embryos.  These provisions enable, for example, the civil partner of a woman who conceives a child through donated sperm to be recognised as the child's legal parent.

The rules differ and are dependent on whether or not the same sex couple are in a Civil Partnership. 

Same sex female couple in a Civil Partnership, treatment at a licensed clinic

Where the woman who received fertility treatment was in a civil partnership at the time of the treatment, the woman's civil partner will be regarded as the second female parent unless it is shown that she did not consent to the treatment or a separation order was in force.  The couple must have been in a civil partnership at the time of treatment. 

If the partner of the woman being treated does not want to be the second legal parent then she will need to explicitly state this in a section of the new consent forms.  This needs to be completed before insemination or embryo transfer in order for it to take effect.

Same sex female couple in a Civil Partnership but the treatment does not take place in a licensed clinic

This situation is where for example a couple are in a civil partnership at the time of treatment but the treatment is carried out at home, artificially, with a known donor who has offered to donate sperm.  The partner of the woman, who carried the child, will be the 2nd legal parent.  However, this is only a presumption and the presumption can be rebutted by anyone, such as the person who donated the sperm.  This means that legal parenthood could potentially be contested.

Same sex female couple that are not in a Civil Partnership

The partner of a woman receiving treatment who is not in a Civil Partnership will only be recognised as the legal parent if the treatment occurs in a licensed clinic and the appropriate consent forms, (WP and PP forms), have been completed before the treatment.  The WP form is the form that the lady carrying the child fills in, consenting to her partner being the legal parent.  The PP form is the form that the partner completes giving her consent to being the second legal parent.  These consents must be given before embryo transfer or insemination takes place and cannot be filled out retrospectively.

I have not carried out the correct procedure or I do not want to enter into a Civil Partnership?  How will this affect the rights I have over my Child?

If a couple in a relationship have not carried out the correct procedure or have entered into a civil partnership after the child's birth or insemination the partner of the woman carrying the child can still obtain parental responsibility (PR) for that child but the consent of everyone with PR will be needed.  The parties will then need to consider adoption.

Many couples that are not civilly partnered will be living together and will be happy to acknowledge their shared responsibility of their children.  PR can only then be obtained through a shared residence order. The parties will then need to consider adoption.

Donor Agreements

These can be entered into between the mother recipient, the sperm donor and the 2nd parent.  The Agreement will set out what the arrangements are to be in relation to the children whether the donor is to be actively involved in the child's life or have no involvement.  The agreement can provide that the mother's partner will be registered on the birth certificate as the 2nd parent and other issues in relation to the naming of the child, contact, schooling, maintenance etc.  The Agreement will not stop a future application being made to the Court but the Court may take the Agreement into account when considering matters.  The jurisdiction of the CSA cannot be excluded.

If you require advice in relation to any of these issues please contact ourFamily Law Team.

Contact us

O'Neill Patient Solicitors LLP

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