The Human Fertilisation and Embryology Act (HFEA) 2008

The Human Fertilisation and Embryology Act (HFEA) 2008 operates within an advancing, complex, ethically challenging and controversial area of science and law.

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 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 upon whether or not the same sex couple are in a civil partnership/marriage.

Same sex female couple in a civil partnership/marriage, treatment at a licensed clinic.
Where the woman who receives fertility treatment is in a civil partnership or married at the time of the treatment, the woman's 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 be in a civil partnership/married 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/marriage but the treatment does not take place in a licensed clinic
This situation is where, for example, a couple are in a civil partnership/married 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/marriage
The partner of a woman receiving treatment who is not in a civil partnership/married will only be recognised as the legal parent if the treatment occurs in a licensed clinic and the appropriate consent forms have been completed before the treatment.

I have not carried out the correct procedure or I do not want to enter into a civil partnership or marry? How will this affect the rights I have over my child?
If you are in a civil partnership/married then you can still obtain parental responsibility (PR) for that child but the consent of everyone with PR will be needed. Alternatively you can consider adoption.

Many couples are not in a civil partnership or married but will be living together and will be happy to acknowledge their shared responsibility of their children. PR can only then be obtained through a court order or 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 child, 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. can be dealt with. The Agreement will not stop a future application being made to the Court, but the Court can take the agreement into account when considering matters as evidence of the parties intentions. The jurisdiction of the Child Maintenance Service cannot be excluded. This is a complicated area and there have been recent cases in the courts in relation to the rights of a known donor and the procedure to be followed at a licenced clinic.

If you require advice in relation to any of these issues please contact us.