Human Fertilisation and Embryology Bill [HL]

House of Commons

Session 2007 - 08
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Other Bills before Parliament

Human Fertilisation and Embryology Bill [HL]

Human Fertilisation and Embryology Bill [HL]
Part 2 — Parenthood in cases involving assisted reproduction
37

37
The agreed fatherhood conditions
(1)
The agreed fatherhood conditions referred to in section 36(b) are met in
relation to a man (“M”) in relation to treatment provided to W under a licence
if, but only if,—
(a)
M has given the person responsible a notice stating that he consents to
5
being treated as the father of any child resulting from treatment
provided to W under the licence,
(b)
W has given the person responsible a notice stating that she consents to
M being so treated,
(c)
neither M nor W has, since giving notice under paragraph (a) or (b),
10
given the person responsible notice of the withdrawal of M’s or W’s
consent to M being so treated,
(d)
W has not, since the giving of the notice under paragraph (b), given the
person responsible—
(i)
a further notice under that paragraph stating that she consents
15
to another man being treated as the father of any resulting child,
or
(ii)
a notice under section 44(1)(b) stating that she consents to a
woman being treated as a parent of any resulting child, and
(e)
W and M are not within prohibited degrees of relationship in relation
20
to each other.
(2)
A notice under subsection (1)(a), (b) or (c) must be in writing and must be
signed by the person giving it.
38
Further provision relating to sections 35 and 36
(1)
Where a person is to be treated as the father of the child by virtue of section 35
25
or 36, no other person is to be treated as the father of the child.
(2)
In England and Wales and Northern Ireland, sections 35 and 36 do not affect
any presumption, applying by virtue of the rules of common law, that a child
is the legitimate child of the parties to a marriage.
(3)
In Scotland, sections 35 and 36 do not apply in relation to any child who, by
30
virtue of any enactment or other rule of law, is treated as the child of the parties
to a marriage.
(4)
Sections 35 and 36 do not apply to any child to the extent that the child is
treated by virtue of adoption as not being the man’s child.
39
Use of sperm, or transfer of embryo, after death of man providing sperm
35
(1)
If—
(a)
the child has been carried by W as a result of the placing in her of an
embryo or of sperm and eggs or her artificial insemination,
(b)
the creation of the embryo carried by W was brought about by using the
sperm of a man after his death, or the creation of the embryo was
40
brought about using the sperm of a man before his death but the
embryo was placed in W after his death,
(c)
the man consented in writing (and did not withdraw the consent)—
(i)
to the use of his sperm after his death which brought about the
creation of the embryo carried by W or (as the case may be) to
45

Human Fertilisation and Embryology Bill [HL]
Part 2 — Parenthood in cases involving assisted reproduction
38

the placing in W after his death of the embryo which was
brought about using his sperm before his death, and
(ii)
to being treated for the purpose mentioned in subsection (3) as
the father of any resulting child,
(d)
W has elected in writing not later than the end of the period of 42 days
5
from the day on which the child was born for the man to be treated for
the purpose mentioned in subsection (3) as the father of the child, and
(e)
no-one else is to be treated—
(i)
as the father of the child by virtue of section 35 or 36 or by virtue
of section 38(2) or (3), or
10
(ii)
as a parent of the child by virtue of section 42 or 43 or by virtue
of adoption,

then the man is to be treated for the purpose mentioned in subsection (3) as the
father of the child.
(2)
Subsection (1) applies whether W was in the United Kingdom or elsewhere at
15
the time of the placing in her of the embryo or of the sperm and eggs or of her
artificial insemination.
(3)
The purpose referred to in subsection (1) is the purpose of enabling the man’s
particulars to be entered as the particulars of the child’s father in a relevant
register of births.
20
(4)
In the application of this section to Scotland, for any reference to a period of 42
days there is substituted a reference to a period of 21 days.
40
Embryo transferred after death of husband etc. who did not provide sperm
(1)
If—
(a)
the child has been carried by W as a result of the placing in her of an
25
embryo,
(b)
the embryo was created at a time when W was a party to a marriage,
(c)
the creation of the embryo was not brought about with the sperm of the
other party to the marriage,
(d)
the other party to the marriage died before the placing of the embryo in
30
W,
(e)
the other party to the marriage consented in writing (and did not
withdraw the consent)—
(i)
to the placing of the embryo in W after his death, and
(ii)
to being treated for the purpose mentioned in subsection (4) as
35
the father of any resulting child,
(f)
W has elected in writing not later than the end of the period of 42 days
from the day on which the child was born for the man to be treated for
the purpose mentioned in subsection (4) as the father of the child, and
(g)
no-one else is to be treated—
40
(i)
as the father of the child by virtue of section 35 or 36 or by virtue
of section 38(2) or (3), or
(ii)
as a parent of the child by virtue of section 42 or 43 or by virtue
of adoption,

then the man is to be treated for the purpose mentioned in subsection (4) as the
45
father of the child.
(2)
If—

Human Fertilisation and Embryology Bill [HL]
Part 2 — Parenthood in cases involving assisted reproduction
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(a)
the child has been carried by W as a result of the placing in her of an
embryo,
(b)
the embryo was not created at a time when W was a party to a marriage
or a civil partnership but was created in the course of treatment services
provided to W in the United Kingdom by a person to whom a licence
5
applies,
(c)
a man consented in writing (and did not withdraw the consent)—
(i)
to the placing of the embryo in W after his death, and
(ii)
to being treated for the purpose mentioned in subsection (4) as
the father of any resulting child,
10
(d)
the creation of the embryo was not brought about with the sperm of
that man,
(e)
the man died before the placing of the embryo in W,
(f)
immediately before the man’s death, the agreed fatherhood conditions
set out in section 37 were met in relation to a man in relation to
15
treatment proposed to be provided to W in the United Kingdom by a
person to whom a licence applies,
(g)
W has elected in writing not later than the end of the period of 42 days
from the day on which the child was born for the man to be treated for
the purpose mentioned in subsection (4) as the father of the child, and
20
(h)
no-one else is to be treated—
(i)
as the father of the child by virtue of section 35 or 36 or by virtue
of section 38(2) or (3), or
(ii)
as a parent of the child by virtue of section 42 or 43 or by virtue
of adoption,
25

then the man is to be treated for the purpose mentioned in subsection (4) as the
father of the child.
(3)
Subsections (1) and (2) apply whether W was in the United Kingdom or
elsewhere at the time of the placing in her of the embryo.
(4)
The purpose referred to in subsections (1) and (2) is the purpose of enabling the
30
man’s particulars to be entered as the particulars of the child’s father in a
relevant register of births.
(5)
In the application of this section to Scotland, for any reference to a period of 42
days there is substituted a reference to a period of 21 days.
41
Persons not to be treated as father
35
(1)
Where the sperm of a man who had given such consent as is required by
paragraph 5 of Schedule 3 to the 1990 Act (consent to use of gametes for
purposes of treatment services or non-medical fertility services) was used for a
purpose for which such consent was required, he is not to be treated as the
father of the child.
40
(2)
Where the sperm of a man, or an embryo the creation of which was brought
about with his sperm, was used after his death, he is not, subject to section 39,
to be treated as the father of the child.
(3)
Subsection (2) applies whether W was in the United Kingdom or elsewhere at
the time of the placing in her of the embryo or of the sperm and eggs or of her
45
artificial insemination.

Human Fertilisation and Embryology Bill [HL]
Part 2 — Parenthood in cases involving assisted reproduction
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Cases in which woman to be other parent
42
Woman in civil partnership at time of treatment
(1)
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, then subject to
section 45(2) to (4), the other party to the civil partnership is to be treated as a
5
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).
(2)
This section applies whether W was in the United Kingdom or elsewhere at the
time mentioned in subsection (1).
10
43
Treatment provided to woman who agrees that second woman to be parent
If no man is treated, by virtue of section 35 as the father of the child and no
woman is treated by virtue of section 42 as a parent of the child, but—
(a)
the embryo or the sperm and eggs were placed in W or she was
artificially inseminated, in the course of treatment services provided in
15
the United Kingdom by a person to whom a licence applies,
(b)
at the time when the embryo or the sperm and eggs were placed in W,
or W was artificially inseminated, the agreed female parenthood
conditions (as set out in section 44) were met in relation to another
woman, in relation to treatment provided to W under that licence, and
20
(c)
the other woman remained alive at that time,
then, subject to section 45(2) to (4), the other woman is to be treated as a parent
of the child.
44
The agreed female parenthood conditions
(1)
The agreed female parenthood conditions referred to in section 43(b) are met
25
in relation to another woman (“P”) in relation to treatment provided to W
under a licence if, but only if,—
(a)
P has given the person responsible a notice stating that P consents to P
being treated as a parent of any child resulting from treatment
provided to W under the licence,
30
(b)
W has given the person responsible a notice stating that W agrees to P
being so treated,
(c)
neither W nor P has, since giving notice under paragraph (a) or (b),
given the person responsible notice of the withdrawal of P’s or W’s
consent to P being so treated,
35
(d)
W has not, since the giving of the notice under paragraph (b), given the
person responsible—
(i)
a further notice under that paragraph stating that W consents to
a woman other than P being treated as a parent of any resulting
child, or
40
(ii)
a notice under section 37(1)(b) stating that W consents to a man
being treated as the father of any resulting child, and
(e)
W and P are not within prohibited degrees of relationship in relation to
each other.

Human Fertilisation and Embryology Bill [HL]
Part 2 — Parenthood in cases involving assisted reproduction
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(2)
A notice under subsection (1)(a), (b) or (c) must be in writing and must be
signed by the person giving it.
45
Further provision relating to sections 42 and 43
(1)
Where a woman is treated by virtue of section 42 or 43 as a parent of the child,
no man is to be treated as the father of the child.
5
(2)
In England and Wales and Northern Ireland, sections 42 and 43 do not affect
any presumption, applying by virtue of the rules of common law, that a child
is the legitimate child of the parties to a marriage.
(3)
In Scotland, sections 42 and 43 do not apply in relation to any child who, by
virtue of any enactment or other rule of law, is treated as the child of the parties
10
to a marriage.
(4)
Sections 42 and 43 do not apply to any child to the extent that the child is
treated by virtue of adoption as not being the woman’s child.
46
Embryo transferred after death of civil partner or intended female parent
(1)
If—
15
(a)
the child has been carried by W as the result of placing in her of an
embryo,
(b)
the embryo was created at a time when W was a party to a civil
partnership,
(c)
the other party to the civil partnership died before the placing of the
20
embryo in the woman,
(d)
the other party to the civil partnership consented in writing (and did
not withdraw the consent)—
(i)
to the placing of the embryo in W after the death of the other
party, and
25
(ii)
to being treated for the purpose mentioned in subsection (4) as
the parent of any resulting child,
(e)
W has elected in writing not later than the end of the period of 42 days
from the day on which the child was born for the other party to the civil
partnership to be treated for the purpose mentioned in subsection (4) as
30
the parent of the child, and
(f)
no one else is to be treated—
(i)
as the father of the child by virtue of section 35 or 36 or by virtue
of section 45(2) or (3), or
(ii)
as a parent of the child by virtue of section 42 or 43 or by virtue
35
of adoption,

then the other party to the civil partnership is to be treated for the purpose
mentioned in subsection (4) as a parent of the child.
(2)
If—
(a)
the child has been carried by W as the result of the placing in her of an
40
embryo,
(b)
the embryo was not created at a time when W was a party to a marriage
or a civil partnership, but was created in the course of treatment
services provided to W in the United Kingdom by a person to whom a
licence applies,
45

Human Fertilisation and Embryology Bill [HL]
Part 2 — Parenthood in cases involving assisted reproduction
42

(c)
another woman consented in writing (and did not withdraw the
consent)—
(i)
to the placing of the embryo in W after the death of the other
woman, and
(ii)
to being treated for the purpose mentioned in subsection (4) as
5
the parent of any resulting child,
(d)
the other woman died before the placing of the embryo in W,
(e)
immediately before the other woman’s death, the agreed female
parenthood conditions set out in section 44 were met in relation to the
other woman in relation to treatment proposed to be provided to W in
10
the United Kingdom by a person to whom a licence applies,
(f)
W has elected in writing not later than the end of the period of 42 days
from the day on which the child was born for the other woman to be
treated for the purpose mentioned in subsection (4) as the parent of the
child, and
15
(g)
no one else is to be treated—
(i)
as the father of the child by virtue of section 35 or 36 or by virtue
of section 45(2) or (3), or
(ii)
as a parent of the child by virtue of section 42 or 43 or by virtue
of adoption,
20

then the other woman is to be treated for the purpose mentioned in subsection
(4) as a parent of the child.
(3)
Subsections (1) and (2) apply whether W was in the United Kingdom or
elsewhere at the time of the placing in her of the embryo.
(4)
The purpose referred to in subsections (1) and (2) is the purpose of enabling the
25
deceased woman’s particulars to be entered as the particulars of the child’s
other parent in a relevant register of births.
(5)
In the application of subsections (1) and (2) to Scotland, for any reference to a
period of 42 days there is substituted a reference to a period of 21 days.
47
Woman not to be other parent merely because of egg donation
30
A woman is not to be treated as the parent of a child whom she is not carrying
and has not carried, except where she is so treated—
(a)
by virtue of section 42 or 43, or
(b)
by virtue of section 46 (for the purpose mentioned in subsection (4) of
that section), or
35
(c)
by virtue of adoption.
Effect of sections 33 to 47
48
Effect of sections 33 to 47
(1)
Where by virtue of section 33, 35, 36, 42 or 43 a person is to be treated as the
mother, father or parent of a child, that person is to be treated in law as the
40
mother, father or parent (as the case may be) of the child for all purposes.
(2)
Where by virtue of section 33, 38, 41, 45 or 47 a person is not to be treated as a
parent of the child, that person is to be treated in law as not being a parent of
the child for any purpose.

Human Fertilisation and Embryology Bill [HL]
Part 2 — Parenthood in cases involving assisted reproduction
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(3)
Where section 39(1) or 40(1) or (2) applies, the deceased man—
(a)
is to be treated in law as the father of the child for the purpose
mentioned in section 39(3) or 40(4), but
(b)
is to be treated in law as not being the father of the child for any other
purpose.
5
(4)
Where section 46(1) or (2) applies, the deceased woman—
(a)
is to be treated in law as a parent of the child for the purpose mentioned
in section 46(4), but
(b)
is to be treated in law as not being a parent of the child for any other
purpose.
10
(5)
Where any of subsections (1) to (4) has effect, references to any relationship
between two people in any enactment, deed or other instrument or document
(whenever passed or made) are to be read accordingly.
(6)
In relation to England and Wales and Northern Ireland, nothing in the
provisions of section 33(1) or sections 35 to 47, read with this section—
15
(a)
affects the succession to any dignity or title of honour or renders any
person capable of succeeding to or transmitting a right to succeed to
any such dignity or title, or
(b)
affects the devolution of any property limited (expressly or not) to
devolve (as nearly as the law permits) along with any dignity or title of
20
honour.
(7)
In relation to Scotland—
(a)
those provisions do not apply to any title, coat of arms, honour or
dignity transmissible on the death of its holder or affect the succession
to any such title, coat of arms or dignity or its devolution, and
25
(b)
where the terms of any deed provide that any property or interest in
property is to devolve along with a title, coat of arms, honour or
dignity, nothing in those provisions is to prevent that property or
interest from so devolving.
References to parties to marriage or civil partnership
30
49
Meaning of references to parties to a marriage
(1)
The references in sections 35 to 47 to the parties to a marriage at any time there
referred to—
(a)
are to the parties to a marriage subsisting at that time, unless a judicial
separation was then in force, but
35
(b)
include the parties to a void marriage if either or both of them
reasonably believed at that time that the marriage was valid; and for the
purposes of those sections it is to be presumed, unless the contrary is
shown, that one of them reasonably believed at that time that the
marriage was valid.
40
(2)
In subsection (1)(a) “judicial separation” includes a legal separation obtained in
a country outside the British Islands and recognised in the United Kingdom.