FAMILY LAW 2014:

Who are the parents?

Introduction: Defining parents

A) Political/ social issue
Whom does the state/society want to recognise?
What is the purpose of recognising a person as a parent?
Family as a system for -property transmission
-imposing responsibilities or allocating rights
-resolving issues of personal identity (late 20 th
Century)
B) Scientific issue
Whom can we identify?
Before 20th Century:
Reliance on presumption of legitimacy to establish paternity
(i.e. husband is presumed to be childs father: FLRA 1969, s.26)
Blood testing identification of blood groups could rule out certain people
Discovery of DNA
Re H and A [2002] 1 FLR 1145- any remaining role for
presumptions?
Legal definitions of mother and father
A) Mother
The Ampthill peerage[1977] AC 547 motherhood proved by parturition
Warnock committee 1978: gestational mother
Family Law Reform Act 1987: proof by scientific tests: genetic mother
Human Fertilisation and Embryology Act 1990, s.27 and HFEA 2008, s.33
gestational mother chosen
-resolves issues in egg donation as parties would wish
but this leads to problems in surrogacy cases (cf California (intention to
parent)
B) Father
Common Law (rebuttable) presumption of legitimacy (marriage)
Presumption rebutted by genetic evidence
Where no marriage, genetic father = legal father
Donor insemination
Creates non genetic fathers if child conceived in licensed clinic
HFEA 2008, ss. 35 and 38 (1990, s. 28) - married fathers
HFEA 2008, ss.36-38 (unmarried father)
C) Second parents
Female partners HFEA 2008, ss. 42,43 - direct comparison with non genetic
fathers

Do wide definitions confuse social and legal parentage?

See Every Family Matters (2009) proposals p 235-236

Human Fertilisation and Embryology Act 2008

Does NOT apply to birth after intercourse s.34
or to procedures carried out outside/ before the enactment of the legislation
A) Artificial insemination: HFEA s 35
1)

Husband
(a) Husbands own sperm used to inseminate wife artificially
HFEA does not apply s.35(1)(b) (1990,s.28(2)(b))
But special rules if husbands sperm used posthumously ss.39, 40
-with prior consent, mans name may appear on birth certificate: s.39(3)
Strict application of consent provisions:
R v HFEA ex parte Blood [1997] 2 FLR 742)
Centre for Reproductive Medicine v U [2002] 1 FLR 927
(b) Donor sperm used to inseminate wife
operation of HFEA creates non-genetic fatherhood
DI is not adultery Maclennan [1958] SC 105
H is father unless he did not consent s.35 (1)
No other man [i.e. donor] is to be treated as father, s.38(1)
No requirement for licensed clinic nor for treatment to be in the UK
Does not oust presumption of legitimacy s.38(2) (s.28(5))

2) Male partner in an unmarried heterosexual couple

consent test: agreed fatherhood conditions, HFEA 2008 s. 37
Procedure must take place in licensed clinic in the UK, ss. 36(a) and 37 (1)
No other man is to be treated as father , s38(1)
3) Lesbian civil partners
Principle of equality
Creates non-genetic same sex second parent
Civil partner treated just like husband, s.42
like husband, no licensed clinic/insemination in UK requirements
Posthumous insemination rules also apply if deceased CP gave consent s. 46
4)

Lesbian couple who are not civil partners

Equality: s. 43 (second parents are treated like unmarried fathers)

5) Single woman using donor insemination

Child may have no legal father s 41(1)
if donation in licensed clinic and donor has given consent under HFEA 1990 Sch
3, para 5
B) Egg donation

HFEA 2008 s 33: motherhood is gestational

no other woman is to be treated as the mother
C) Embryo donation
Mother again determined by gestation
Father/female co-parent according to the categories described above
D) Surrogacy
1) Reasons for using surrogacy/types of surrogacy
(a) woman cannot carry a child (surrogate provides womb)
(b) woman may also not be able to produce eggs (surrogate provides egg plus
womb)
(c) there is no female partner single man or same sex male couple

2) Legal issues:
a) Regulation of surrogacy: Surrogacy Arrangements Act 1985 (as am
HFEA 2008)
Prohibits commercial surrogacy(paid intermediaries) and advertising
Transactions legally unenforceable
b) application of the HFEA rules means wrong people are the legal
parents
Solution:
Parental Order HFEA 2008 s.54 transfers legal parentage from surrogate to
others
Legal requirements include:
a) One applicant must be genetic parent
b) At least one domiciled in UK; both over 18
b) Surrogate and her husband must consent (mother 6 weeks after
birth) : cf s.54(7)
D v L (surrogacy) [2012] EWHC
c) Only reasonable expenses can be paid to surrogate, s.54(8)
But consider the problems in e.g. Re IJ (a child) [2011] EWHC 921 (Fam)
-retrospective authorisation becoming increasingly common
d) Applicants must be married or CPs or in an enduring family
relationship
(and not within prohibited degrees)
-but order possible even if one parent now deceased
A and A v P, P and B [2011] EWHC 1738 (Fam)
e) Court must be willing to make order with childs welfare paramount
Comparison with adoption: Mr G v Mrs G [2012] EWHC 1979
What happens if gametes are used without consent?
Leeds Teaching Hospital v A [2003] 1 FLR 1091 sperm mixed up
H not father at common law presumption rebutted - clearly his sperm
H not to be treated as father under HFEA - only consented to use of own
sperm
Biological father did not consent to donation so s.41(1) does not apply
So...at common law, fatherhood follows genetics other man is the legal
father !

Court proceedings for proving parentage

1) Proving paternity/ maternity
Declarations of parentage: Family Law Act 1986, s.55A
eg for inheritance
may be sought by parents, children
otherwise only if court finds sufficient personal interest
2) Proceedings relating to contact, residence and care:
Children Act 1989
3) Financial obligations to children
Child Support Act 1991
Children Act 1989, schedule 1 etc
4) Courts powers to order scientific tests
FLRA 1969, s.20 direction not order
(taking of samples requires consent, s.21(1)
Court can direct sample from a child who lacks capacity, s.21(4)
Failure to comply with s.20: direction court may draw inferences s.23(1)
Secretary of State for Pensions v Jones [2004] 1 FLR 282

Legal consequences of being a parent (parentage)

a) Duty to maintain at common law
b) Inheritance rights: FLRA 1969
c) *Access to court: CA 1989, ss.10, 34
d) *Right to be consulted if child looked after by LA: s.22
e) *Right to family life
Keegan v. Ireland (1994) 18 EHRR 342
B v. UK [2000] 1 FLR 1

And see again *Parental responsibility

n.b. not all fathers have PR
and non parents may have *these rights/ obligations