Parentage

Compiled by : Ms Anne Shyamala - Senior Lecturer -BAC

Different meaning of parent/parentage ?

RE G ( Children ) (Residence: Same Sex Partner)(2006)

Baroness Hale –different aspects of parenthood
1. Legal parenthood – in the eye of the law , who is the parent
2. Genetic parenthood – whose sperm/egg led to the creation of the child
3. Social parent – the one who carries out the day to day care over the
child

Compiled by : Ms Anne Shyamala - Senior Lecturer -BAC

 Who is a child’s parent ?

• Who is a child’s mother when a woman gives birth to a child conceived as a

result of egg donation by another woman

• Is the woman who gave birth the mother of the child or is

the woman who donated her egg the mother

• Can a female-to-male transsexual person become a child’s

father via assisted conception

• Is a mother’s same-sex partner to be recognised as her

child’s parent too

Compiled by : Ms Anne Shyamala - Senior Lecturer -BAC

 Who is a child’s parent ?

human fertilization embryology act- the donor of sperm can never be the
Mother : Father : father

Ampthill Peerage Case (1977) – parturition GR : ( subject to provision in HFEA) a child’s father
Can apply even if the child is not genetically is the man whose sperm resulted in the child’s
related conception
Sc33 HFEA 2008 ( similar to Sc 27 HFEA
1998) One of the legal presumption applies (can be rebutted)

The woman who is carrying or has carried a child a. If a married women gives birth , it is a. If a man name appears in the
as a result of the placing in her of an embryo or of presumed that her husband is the birth certificate (Birth & Death
sperm and eggs, and no other woman, is to be
treated as the mother of the child. father to the child - Re H and A (2002) Registration Act 1953)
-Does not apply to unmarried couple
this applied to unmarried couple/cohabitant
-Birth takes place during marriage but
conception took place before the
marriage
-Even if death or divorce has ended the
marriage by the time the birth occurs
presumption of legitimacy

the laowang use dna test, he can rebut the

Note : how can the presumption be rebutted :
presumption that he is the father. paternity test dna test

Compiled by : Ms Anne Shyamala - Senior Lecturer -BAC

Assisted reproduction – HFEA 1990 &2008 – who is the parent?
Mother : Father :
Sc33 HFEA 2008 ( similar to Sc 27 HFEA sperm donor will not be
1998) considered as the father Sc
41 HFEA
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.

Married couple Unmarried couple Same sex couples : other parent

Sc 35 HFEA Sc36 & Sc37
Women is a civil NOT Civil partner
partner/ married to Sc43 & Sc44 HFEA
a women
Sc42 HFEA

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Married couple :
a. Sc 35 HFEA 2008 ( similar to Sc 28(2) HFEA1990)
- The husband of a women who gives birth as a result of a
licensed clinic’s assisted reproductive treatment is presumed
to be the child’s father unless he shows that he did not
consent to the treatment .
- The lack of consent will be assessed subjectively
- The sperm donor will not be considered as the father

( child must be conceived by AI and not by sexual relation with

the donor) – M v F and H ( Legal Paternity)(2013)

Compiled by : Ms Anne Shyamala - Senior Lecturer -BAC

 Unmarried couple
-Sc36 & 37 HFEA 2008

Sc 36 : Sc 37 HFEA ( agreed fatherhood conditions)

(a) …. W was artificially inseminated in (a) M has given the person responsible a notice stating that he
the course of treatment services consents to being treated as the father of any child resulting
provided from treatment provided to W under the licence, notice
by w
(b)… the agreed fatherhood condition ( (b) W has given the person responsible a notice stating that she and m

under sc 37) were satisfied in relation consents to M being so treated ,

to the man (c) Neither M nor W has , since giving notice under para(a) or (b) ,
(c ) the man remained alive at that giving the person responsible notice of the withdrawal of M’s
time orW’s consent to M being so treated ,
(d) The creation of the embryo carried (d) W has not, since the giving of the notice under para(b) ,given
by W was not brought about with the the person responsible –
man’s sperm … the man shall be actually i want another (i) a further notice under that paragraph stating that she
man/women to suffice
treated as the father of the child this heading consents to another man being treated as the father of
any resulting child,or
(ii)a notice under sc 44 (1)(b) stating that she consents
to a women being treated as a parent of any resulting
child , and
(e) W and M are not within prohibited degrees of
Compiled by : Ms Anne Shyamala - Senior Lecturer -BAC
relationship in relation to each other
Take note : ( Bromley’s Family Law )
Several conditions must be satisfied in order for s 36 to confer legal parenthood on the putative father.
(i)The putative father’s sperm must not have been used.
(ii)The mother must have no husband who falls within the terms of s 35 and no wife or civil partner who falls
within the terms of s 42. Priority in determining legal parenthood therefore continues to be accorded to these
formal legal relationships.
(iii)Treatment must have been provided by a licensed clinic in the UK. This means that unlike married couples or
civil partners falling within the terms of ss 35 or 42, an unmarried couple making a ‘DIY’ attempt at AID at home
will not be able to rely on the determination of parenthood under s 36. If a couple does embark upon DIY
treatment, the common law will apply and the donor, as the genetic father, will be regarded as the child’s legal
[Link] requirement to attend at a licensed clinic allows the state, in the absence of marriage, to exercise
greater control over access to treatment.
(iv)The agreed fatherhood conditions must be satisfied at the point at which the embryo or the sperm and eggs
were placed in the mother or the mother was artificially inseminated.118 The putative father must also have been
alive at this point.

Compiled by : Ms Anne Shyamala - Senior Lecturer -BAC

Take note : ( Bromley’s Family Law )

The agreed fatherhood conditions are set down in s 37, which establishes a straightforward process of
notification: the mother and the putative father must both have notified the licensed provider in writing that
they consent to the man being treated as the legal father of any resulting child.

That notification can be withdrawn by either the mother or the putative father at any point up to the point of
embryo transfer or insemination of the woman with the eggs and/or sperm. If consent is withdrawn by either
party then legal fatherhood cannot be conferred on that man.

The putative father is also prevented from being accorded legal fatherhood if, before the point of embryo
transfer or insemination, the mother provides a further notice to the clinic, in writing, that she consents to
another man or woman being treated as the legal father or second parent of the child.

Provided this second man or woman is able to satisfy the agreed fatherhood or agreed female parenthood
conditions, then he or she will be deemed the legal parent

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Same sex couples :
a. Who is a civil partnership/ same sex marriage –Sc 42
Sections 42–7 of the Act contain the new and clearly more controversial provisions on
determining parenthood where a woman receives fertility treatment together with her
female partner. The provisions for determining the legal status of the second female parent
are identical to those for determining fatherhood but ‘father’ is replaced with ‘second
parent’.
Sc42 …. Unless it is shown that she did not consent to the placing ….
• Woman in civil partnership or marriage to a woman at time of treatment
If at the time of the placing in her of the embryo or the sperm and eggs or of her artificial
insemination, W was a party to a civil partnership [with another woman] [or a marriage with
another woman], then subject to section 45(2) to (4), the other party to the civil partnership [or
marriage] is to be treated as a parent of the child unless it is shown that she did not consent
to the placing in W of the embryo or the sperm and eggs or to her artificial insemination (as
the case may be).

b. Who is not in a civil partnership ( Sc 43 & 44)

Compiled by : Ms Anne Shyamala - Senior Lecturer -BAC
Take note : ( Bromley’s Family Law )

Where either s 42 or s 43 applies, the woman is treated as the second parent of the child for all legal
purposes.
The Act further provides that where there is a second female parent, no man is treated as the child’s
father.
Thus, a child can be born into a family consisting of two female parents and no legal father.

Compiled by : Ms Anne Shyamala - Senior Lecturer -BAC

 Who is not in a civil partnership ( Sc 43 & 44)
Sc43 is in similar terms to section 36, with necessary modifications to accommodate the fact that in this case
the treatment provided to two women. Sc 44 then sets out a series of ‘female parenthood conditions’ which
must be fulfilled if the partner of the child’s mother is to acquire legal parenthood . The partner’s mother who
fulfills the conditions of section 43 and 44 becomes the child’s other legal parent

Sc 43 : Sc 44 The agreed female parenthood conditions

(a) … W is artificially The agreed female parenthood conditions referred to in section 43(b) are met in relation to
inseminated , in the course another woman (“P”) in relation to treatment provided to W under a licence if, but only if,—
of treatment services (a)P has given the person responsible a notice stating that P consents to P being treated as a
(b) At the time …. The agreed parent of any child resulting from treatment provided to W under the licence,
female parenthood (b)W has given the person responsible a notice stating that W agrees to P being so treated,
condition ( in section 44) (c)neither W nor P has, since giving notice under paragraph (a) or (b), given the person
were met in relation to responsible notice of the withdrawal of P's or W's consent to P being so treated,
another women (d)W has not, since the giving of the notice under paragraph (b), given the person
(c) The other women responsible—
remained alive at that (i)a further notice under that paragraph stating that W consents to a woman
time other than P being treated as a parent of any resulting child, or
…. The other women is treated (ii)a notice under section 37(1)(b) stating that W consents to a man being treated
as a parent of the child as the father of any resulting child, and
(e)W and P are not within prohibited degrees of relationship in relation to each other.

Compiled by : Ms Anne Shyamala - Senior Lecturer -BAC

Cases :
Leeds Hospital v A & B (2003) ( look at the subject guide)

Evans v Amicus Healthcare (2005) Sc28(6)(b) HFEA

Amended by the Human Fertilization and Embryology (Deceased
Fathers)Act 2003

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Parental Order ( in relation to surrogacy )
Surrogacy Arrangements Act 1985 defines surrogacy arrangement as one made before the women began
to carry the child ‘with the view to any child carried pursuance of it being handed over to, and parental
responsibility being met by another person or persons

The gestational mother is the mother and the genetic father is the father to the child . But it is possible
for the commissioning couple to apply to apply to the court for a PARENTAL ORDER , which will treat
them as parents to the child
Whittington Hospital NHS Trust (Appellant) v XX (Respondent) [2020] UKSC the Supreme Court,
although acknowledging surrogacy arrangements are unenforceable, recognised the wide-ranging
practice of surrogacy in the UK.
Lady Hale’s judgment explains that under UK law, in essence, surrogacy arrangements are completely
unenforceable; the surrogate mother is always the child’s legal parent unless and until a court makes a
“parental order” transferring legal parenthood to the commissioning parents; and the making of
surrogacy arrangements on a commercial basis is banned.

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• To obtain the order it is necessary to show : Sc54 HFEA 2008
a. Either the sperm or eggs or both came from the commissioning husband or
wife
b. Applicants – married, civil partners or in an enduring relationship
c. Must be over 18 yrs
d. At least one – domiciled in UK
e. Child must at the time live with the applicants
f. Application – within 6 months of the child ‘s birth
g. Father – full and unconditional consent
h. Mother – full and unconditional consent ; at least 6 weeks after the birth
i. Husband of the women – consent
j. Money or other benefit must not been given ; unless reasonable expenditure
k. Pregnancy was not the result of sexual intercourse between surrogate mother
and male applicant
l. Child’s welfare is paramount consideration and checklist under Adoption and
Children Act 2002 applies

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Dispute on Paternity ( DNA /Blood Test)
The courts have the power in Part III of the Family Law Reform
Act 1969 to direct scientific testing : Sc 20 FLRA

In any civil proceedings in which the parentage of any person falls to be determined, the court
may, either of its own motion or on an application by any party to the proceedings, give a
direction—
(a)
for the use of scientific tests to ascertain whether such tests show that a party to the proceedings
is or is not the father or mother of that person; and
(b)
for the taking, within a period specified in the direction, of bodily samples from all or any of the
following, namely, that person, any party who is alleged to be the father or mother of that person
and any other party to the proceedings …2

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The courts would have to consider whether there is sufficient evidential basis to justify serious
consideration of the application . Re D ( Paternity)- reasonable grounds for believing that the applicant
was the child’s father

General guidance on the discretion to direct test : S v McC and M; W v W (1972)

The point of law to be resolved was whether a blood test could be ordered despite the fact that the
child might not benefit from the outcome of the test. The concern was that testing would risk the child’s
loss of the benefit of the presumption of legitimacy. The Official Solicitor argued that testing should not
take place unless it could be shown to be in the child’s best interests

His Lordship held that ‘the court ought to permit a blood test of a young child to be taken unless
satisfied that that would be against the child’s interests’.The House of Lords made clear, therefore, that
the paramountcy of the child’s welfare is not the governing principle.

Lord Hodson:
The interests of justice in the abstract are best served by the ascertainment of the truth and there must
be few cases where the interests of children can be shown to be best served by the suppression of truth

The House recognised, however, that there:

may be a conflict between the interests of the child and the general requirements of justice. Justice
requires that available evidence should not be suppressed but it may be against the interests of the child
to produce it Compiled by : Ms Anne Shyamala - Senior Lecturer -BAC
 Re F (A Minor) (Paternity Test) [1993]
Re H&A (Paternity: Blood Tests) [2002)
The older cases were concerned that a child’s settled family relationships should not be disrupted by
tests (Re F), but the recent cases have favoured ordering them in the interests of the child (Re H and A)
even where the parent or the child objects.

Re F (A Minor) (Paternity Test) [1993]

Balcombe LJ:
From the speeches in the House of Lords the following principles can be derived: (1) The presumption of
legitimacy merely determines the onus of proof . . . (2) Public policy no longer p. 630↵requires that
special protection should be given by the law to the status of legitimacy . . . (3) The interests of justice
will normally require that available evidence be not suppressed and that the truth be ascertained
whenever possible . . . In many cases the interests of the child are also best served if the truth is
ascertained . . . (4) However, the interests of justice may conflict with the interests of the child. In
general the court ought to permit a blood test of a young child to be taken unless satisfied that that
would be against the child’s interests; it does not need first to be satisfied that the outcome of the test
will be for the benefit of the child . . . (5) “It is not really protecting the child to ban a blood test on some
vague and shadowy conjecture that it may turn out to be to its disadvantage: it may equally well turn
out to be for its advantage or at least do it no harm”.

In Re H Minor (Blood Tests: Parental Rights)(1997) the court held that ‘every child has the right to know
the truth unless his welfare justifies covering it up’.
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