Gill Steel, Law Skills
Who is the parent of a child born as a result of fertility treatment? The answer to this question has clear ramifications in the drafting of Wills and trusts and the administering of estates (both testate and intestate) and trusts. The Human Fertilisation & Embryology Act 2008 updates the 1990 Act and changes some of the rules in relation to unmarried couples and same sex couples.
Married Couples
In a married couple legal motherhood lies with the woman who carries the child rather than the woman who may have donated the egg. If a woman is married at the time of the treatment then her husband is treated as the father of the child unless it is shown that he did not consent to the treatment. The sperm donor has no status as a parent but his details are retained by the Register and will be made available to the child when an adult.
Unmarried heterosexual couples
A similar right has applied to the male partner in an unmarried couple as long as the fertility treatment was conducted through a licensed clinic and the couple were ‘together’. This concept of being ‘together’ has caused difficulty so in the case of an unmarried heterosexual couple the rules are to change with effect from 6 April 2009. The male partner will only be regarded as the legal father if a written election is made at the time of the treatment for conceiving with donor sperm.
Like any unmarried father the male will only have parental responsibility for the child if he is named on the birth certificate, although of course he will be the father of the child for inheritance and financial responsibility purposes.
Same sex couples
For lesbian couples prior to the 2008 Act the non-birth mother was not recognised as a parent of the child unless she had taken steps to acquire parenthood after the birth – i.e via adoption. The rules for heterosexual couples will apply to same sex couples who conceive a child with a sperm donor after April 2009 –
- For civil partners where a female civil partner conceives by ‘artificial insemination’ after 6 April 2009 her civil partner will be regarded as the child’s ‘parent’ unless she did not consent – this will cover insemination at home and not at a licensed clinic.
- For non civil partners, the non-birth mother will only be regarded as the child’s parent if the couple conceives at a licensed clinic and the relevant written elections are in place at that time.
- If a child has two female ‘parents’ the natural father’s status is likely to be excluded from 6 April 2009 as a child can only legally have two parents.
Surrogacy
The surrogate mother (the one carrying the child) is the legal mother of the child and if she is married her husband is the legal father. The current law allows for the intended parents to apply for a ‘parental order’ after the birth to re-designate the intended parents as the actual parents. From April 2010 this system of applying for ‘parental orders’ will also apply to unmarried and same sex couples as well.
Practice points
When advising unmarried couples who have conceived using donor sperm it will be necessary to know when and where the conception took place and whether the relevant written elections are in place in order to regard any child as within the category of ‘children’ for the purposes of any Wills or trusts made by the couple;
When advising same sex couples with children you will need to consider whether a gift to ‘my children’ will include the sperm-donor conceived child or not and if it is intended to do so then specific provisions may be needed to ensure this occurs, such as specifically naming that child as a beneficiary; and
When advising any male client we should ask if they have ever donated sperm and if so whether any gift they make to ‘my children’ is intended to include children resulting from such sperm donation or not.
When advising unmarried couples who have conceived using donor sperm it will be necessary to know when and where the conception took place and whether the relevant written elections are in place in order to regard any child as within the category of ‘children’ for the purposes of any Wills or trusts made by the couple;
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When advising same sex couples with children you will need to consider whether a gift to ‘my children’ will include the sperm-donor conceived child or not and if it is intended to do so then specific provisions may be needed to ensure this occurs, such as specifically naming that child as a beneficiary; and
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When advising any male client we should ask if they have ever donated sperm and if so whether any gift they make to ‘my children’ is intended to include children resulting from such sperm donation or not.
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