⇒ A parent is NOT always the biological parent

⇒ Parentage includes: genetic parentage, coital parentage, gestational parentage, psychological parentage

• I.e. your genetic parents, the parents who provided the egg & sperm, the parent who gave birth to you, and the individuals the child perceives as their parent
• Lady Hale in Re G [2006] said that a child's natural parent would be genetic, gestational, and psychological

⇒ Section 55A of the Family Law Act 1996 enables application to the court for a declaration of parentage if there is a dispute as to who is the parent (this involves a DNA test)

⇒The gestational link usually makes this obvious (i.e. if they gave birth to the child then it is usually clear who the mother is)

• Although, with IVF, things are a little more complicated

⇒ Section 33(1) Human Fertilisation and Embryology Act 2008 states that the legal mother is the one who carries the child and gives birth to them (even if they are a surrogate)

⇒ Note: there is often a lot of tension between biological and psychological mothers e.g. in Re G [2006], a lesbian couple were battling over contact with their children, but G was the only one to carry both of them

⇒ See Re G [2006]

⇒ See Re B (a child) [2009]

⇒ Surrogacy is an arrangement between the ‘commissioning parent’ and ‘gestational mother’ – the definition of ‘surrogate mother’ is found in s1(2) of Surrogacy Arrangement Act 1985

⇒ The non-gestational mother must get a parental order to get parental responsibility

⇒ They must have a surrogacy agreement before the pregnancy

⇒ The Human Fertilisation and Embryology Act 1990, section 30, says a court can make a parental order allowing child to be treated as a child of married parties if the child was carried by someone else and gametes of either were planted in surrogate

⇒ New surrogacy provisions were brought in by the Human Fertilisation and Embryology Act 2008 section 54:

• Two male partners can become two legal parents of a child by way of a parenting order following surrogacy
• Surrogacy provisions have been extended to unmarried coupled if tjeu are living in an "enduring family relationship" - this was controversial at the time

⇒ Most people think it is the person who gave sperm, but it is not always that obvious

⇒ A man must show:

• Genetic parentage, OR
• Legal presumption of paternity exists and has not been rebutted, OR
• Assisted reproduction and statutory provisions apply, OR
• An adoption or parental order has been made in his favour

⇒ In Re H and A (Children) [2002] they said it is important, regardless of the consequences. Here, a husband said he would have nothing to do with the family if he was not the biological father.

⇒ In Mikulic v Croatia [2002] they said it is important too, as it helps inform the child of who they are

⇒ However, Re D [2006] said it is NOT important if it is felt it would be in the child’s best interest not to know. In this case it was not in the child’s best interest to know due to his age (11) and understanding

⇒ If a married woman gives birth they are presumed to be the husband’s child (see Banbury Peerage case)

⇒ If the father’s name is on birth certificate, they are presumed to be the father (Welfare Reform Act: compulsory joint registration)

⇒ Possibly a Parental Responsibility agreement will be prima facie evidence of fatherhood (see R v SoS ex p West)

⇒ Section 26 of the Family Law Reform Act 1969 says that a presumption can be rebutted on the balance of probabilities, sampling or testing

• For example, in the case of Brierly v Brierly and Williams [1918], a man's child was born despite him being on military service in France. He was able to rebut the presumption of paternity as a result
• In F v CSA [1999], it was held that the Child Support Agency can infer a man is the father if he refuses a blood test for the court

⇒ Section 20 of the Family Law Reform Act 1969 gives the court the discretion to direct (NOT order) a man to seek paternity testing

⇒ In MA v RS [2011], 2 women were in a civil partnership and there were also 2 men involved in this case. One man helped one of the women have a child and he was given parental responsibility. The second woman was also given parental responsibility too. The men considered that the other man was a stepfather to the child

• A defined contact order was made in favour of the men. The court said it was most helpful to think in terms of principal and seconday parenting, rather than traditional concepts of mother, father, and primary carer

⇒ In A v B + C [2012], we see a similar case. But it was held that the paramountcy of the child’s welfare is the only principle to be applied as the concept of primacy and secondary parenting had a danger of demeaning the known donor who may have an important role

⇒ There is a 2 tier system regarding assisted reproduction - basically both the Human Fertilisation and Embryology Act 1990 and 2008 apply:

1. Where embryo/gamete transfer happened before April 2009, the 1990 parenthood provisions apply
2. Where embryo/gamete transfer happened after April 2009, the 2008 parenthood provisions apply

⇒ The Human Fertilisation and Embryology Act was ‘out of date’ and didn't reflect 21st century society e.g. the provisions needed to be extended to same-sex relationships

⇒ A man who donates sperm in a licensed clinic is not the father of any child born using that sperm so long as his sperm is used in accordance with his consent under schedule 2 of the HFEA 1990

1) Where embryo/gamete transfer took place prior to April 2009

⇒ The HFEA 1990 applies

⇒ Section 28(2) HFEA 1990 says that for the husband to be the father he has to be married, consent to treatment, and NOT be his sperm

⇒ Section 28(3) HFEA 1990 says an unmarried male partner will be the father if everything is done at a licensed clinic, involving unmarried woman, and they are going through treatment services together

⇒ E.g Leeds Teaching Hospitals case [2003]: the wrong man became the legal father due to a sperm mix-up (man didn't consent to alternative treatment that was done)

2) Where embryo/gamete transfer takes place on/after April 2009

⇒ The HFEA 2008 applies

⇒ Section 35 HFEA 2008 pretty much mirrors s.28(2) HFEA 1990 above

⇒ Section 36 HFEA 2008 (based on s.28(3) HFEA 1990 above) says:

• Where embryo/sperm/artificial insemination placed in the woman in the course of treatment services at a UK licensed clinic, and
• At time of placing in the woman the Agreed Fatherhood Conditions (see below) were satisfied, and
• Man was still alive, and
• Embryo was not brought about with man’s sperm, and
• He is not a father under s.35 (above) (i.e. an unmarried male partner)
• THEN the man is to be treated as the father of the child

⇒ The man has given notice consenting himself to be treated as child’s father, and

⇒ The woman also gave consent to the man being treated as the child’s father, and

⇒ Neither the woman nor the unmarried male partner have since withdrawn their consent, and

⇒ The woman has not given her consent to another man being treated as the child’s father (this is controversial)

⇒ In other words, when can there be two women as parents, with NO father?

⇒ Section 42 of the Human Fertilisation and Embryology Act 2008:

• If at time of placing in her the embryo, or sperm and egg, or artificial insemination, the woman was in a civil partnership, and
• The other party to the civil partnership consented to the placing in her the embryo etc,
• That other party will be a parent and, according to section 45, no man is to be the father!

⇒ Section 43 and 44 of the HFEA 2008 is similar to section 36 and 37 (Agreed Fatherhood Conditions) but apply to women (this has been controversial)

⇒ There are only 2 ways to lose parenthood: an adoption order is made OR a parental order made under section 30 HFEA 1990

⇒ Note: losing parental responsibility is different to losing parenthood