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Human Fertilisation and Embryology Bill [HL]


Human Fertilisation and Embryology Bill [HL]
Schedule 6 — Amendments relating to parenthood in cases involving assisted reproduction
Part 1 — General

80

 

British Nationality Act 1981 (c. 61)

21         

In section 50 of the British Nationality Act 1981 (interpretation) in subsection

(9A) (a child’s father) for paragraphs (b) and (c) substitute—

“(b)   

where a person is treated as the father of the child under

section 28 of the Human Fertilisation and Embryology Act

5

1990 or section 35 or 36 of the Human Fertilisation and

Embryology Act 2008, that person, or

(ba)   

where a person is treated as a parent of the child under

section 42 or 43 of the Human Fertilisation and Embryology

Act 2008, that person, or

10

(c)   

where none of paragraphs (a) to (ba) applies, a person who

satisfies prescribed requirements as to proof of paternity.”

Family Law Act 1986 (c. 55)

22         

In section 56 of the Family Law Act 1986 (declarations of parentage,

legitimacy or legitimation), in subsection (5)(a), after “section 2” insert “,

15

2A”.

Family Law Reform Act 1987 (c. 42)

23    (1)  

Section 1 of the Family Law Reform Act 1987 (general principle) is amended

as follows.

      (2)  

In subsection (3) (children whose father and mother are to be taken to have

20

been married to each other at the time of the child’s birth) after paragraph

(b) insert—

“(ba)   

has a parent by virtue of section 42 of the Human Fertilisation

and Embryology Act 2008 (which relates to treatment

provided to a woman who is at the time of treatment a party

25

to a civil partnership or, in certain circumstances, a void civil

partnership);

(bb)   

has a parent by virtue of section 43 of that Act (which relates

to treatment provided to woman who agrees that second

woman to be parent) who—

30

(i)   

is the civil partner of the child’s mother at the time of

the child’s birth, or

(ii)   

was the civil partner of the child’s mother at any time

during the period beginning with the time mentioned

in section 43(b) of that Act and ending with the child’s

35

birth;”.

      (3)  

After subsection (4) insert—

“(5)   

A child whose parents are parties to a void civil partnership shall,

subject to subsection (6), be treated as falling within subsection

(3)(bb) if at the time when the parties registered as civil partners of

40

each other both or either of the parties reasonably believed that the

civil partnership was valid.

(6)   

Subsection (5) applies only where the woman who is a parent by

virtue of section 43 was domiciled in England and Wales at the time

of the birth or, if she died before the birth, was so domiciled

45

immediately before her death.

 

 

Human Fertilisation and Embryology Bill [HL]
Schedule 6 — Amendments relating to parenthood in cases involving assisted reproduction
Part 1 — General

81

 

(7)   

Subsection (5) applies even though the belief that the civil

partnership was valid was due to a mistake as to law.

(8)   

It shall be presumed for the purposes of subsection (5), unless the

contrary is shown, that one of the parties to a void civil partnership

reasonably believed at the time of the formation of the civil

5

partnership that the civil partnership was valid.”

24    (1)  

Section 18 of the Family Law Reform Act 1987 (succession on intestacy) is

amended as follows.

      (2)  

After subsection (2) insert—

“(2A)   

In the case of a person who has a parent by virtue of section 43 of the

10

Human Fertilisation and Embryology Act 2008 (treatment provided

to woman who agrees that second woman to be parent), the second

and third references in subsection (2) to the person’s father are to be

read as references to the woman who is a parent of the person by

virtue of that section.”

15

      (3)  

In subsection (3), for “section 50(1) of that Act” substitute “section 50(1) of

the Administration of Estates Act 1925”.

Children Act 1989 (c. 41)

25    (1)  

Section 2 of the Children Act 1989 (parental responsibility for children) is

amended as follows.

20

      (2)  

After subsection (1) insert—

“(1A)   

Where a child—

(a)   

has a parent by virtue of section 42 of the Human Fertilisation

and Embryology Act 2008; or

(b)   

has a parent by virtue of section 43 of that Act and is a person

25

to whom section 1(3) of the Family Law Reform Act 1987

applies,

   

the child’s mother and the other parent shall each have parental

responsibility for the child.”

      (3)  

After subsection (2) insert—

30

“(2A)   

Where a child has a parent by virtue of section 43 of the Human

Fertilisation and Embryology Act 2008 and is not a person to whom

section 1(3) of the Family Law Reform Act 1987 applies—

(a)   

the mother shall have parental responsibility for the child;

(b)   

the other parent shall have parental responsibility for the

35

child if she has acquired it (and has not ceased to have it) in

accordance with the provisions of this Act.”

26         

After section 4 of the Children Act 1989 insert—

“4ZA    

Acquisition of parental responsibility by second female parent

(1)   

Where a child has a parent by virtue of section 43 of the Human

40

Fertilisation and Embryology Act 2008 and is not a person to whom

section 1(3) of the Family Law Reform Act 1987 applies, that parent

shall acquire parental responsibility for the child if—

 

 

Human Fertilisation and Embryology Bill [HL]
Schedule 6 — Amendments relating to parenthood in cases involving assisted reproduction
Part 1 — General

82

 

(a)   

she becomes registered as a parent of the child under any of

the enactments specified in subsection (2);

(b)   

she and the child’s mother make an agreement providing for

her to have parental responsibility for the child; or

(c)   

the court, on her application, orders that she shall have

5

parental responsibility for the child.

(2)   

The enactments referred to in subsection (1)(a) are—

(a)   

paragraphs (a), (b) and (c) of section 10(1B) and of section

10A(1B) of the Births and Deaths Registration Act 1953;

(b)   

paragraphs (a), (b) and (d) of section 18B(1) and sections

10

18B(3)(a) and 20(1)(a) of the Registration of Births, Deaths

and Marriages (Scotland) Act 1965; and

(c)   

sub-paragraphs (a), (b) and (c) of Article 14ZA(3) of the Births

and Deaths Registration (Northern Ireland) Order 1976.

(3)   

The Secretary of State may by order amend subsection (2) so as to

15

add further enactments to the list in that subsection.

(4)   

An agreement under subsection (1)(b) is also a “parental

responsibility agreement”, and section 4(2) applies in relation to such

an agreement as it applies in relation to parental responsibility

agreements under section 4.

20

(5)   

A person who has acquired parental responsibility under subsection

(1) shall cease to have that responsibility only if the court so orders.

(6)   

The court may make an order under subsection (5) on the

application—

(a)   

of any person who has parental responsibility for the child; or

25

(b)   

with the leave of the court, of the child himself,

   

subject, in the case of parental responsibility acquired under

subsection (1)(c), to section 12(4).

(7)   

The court may only grant leave under subsection (6)(b) if it is

satisfied that the child has sufficient understanding to make the

30

proposed application.”

27    (1)  

Section 12 of the Children Act 1989 (residence orders and parental

responsibility) is amended as follows.

      (2)  

After subsection (1) insert—

“(1A)   

Where the court makes a residence order in favour of a woman who

35

is a parent of a child by virtue of section 43 of the Human Fertilisation

and Embryology Act 2008 it shall, if that woman would not

otherwise have parental responsibility for the child, also make an

order under section 4ZA giving her that responsibility.”

      (3)  

In subsection (4)—

40

(a)   

after “(1)” insert “or (1A)”,

(b)   

after “4” insert “or 4ZA”, and

(c)   

for “father” substitute “parent”.

28         

In section 91 of the Children Act 1989 (effect and duration of orders)—

(a)   

in subsection (7), after “4(1),” insert “4ZA(1),”, and

45

(b)   

in subsection (8)(a), after “4” insert “, 4ZA”.

 

 

Human Fertilisation and Embryology Bill [HL]
Schedule 6 — Amendments relating to parenthood in cases involving assisted reproduction
Part 1 — General

83

 

29         

In section 104 of the Children Act 1989 (regulations and orders)—

(a)   

in subsection (2), after “4(1B),” insert “4ZA(3),”, and

(b)   

in subsection (3), after “4(1B)” insert “, 4ZA(3)”.

30         

In section 105 of the Children Act 1989 (interpretation), in subsection (1), in

the definition of “parental responsibility agreement”, after “sections 4(1)”

5

insert “, 4ZA(4)”.

31    (1)  

Schedule 1 to the Children Act 1989 (financial provision for children) is

amended as follows.

      (2)  

At the end of paragraph 4 insert—

    “(5)  

In the case of a child who has a parent by virtue of section 42 or 43

10

of the Human Fertilisation and Embryology Act 2008, any

reference in sub-paragraph (2), (3) or (4) to the child’s father is a

reference to the woman who is a parent of the child by virtue of

that section.”

      (3)  

At the end of paragraph 10 insert—

15

    “(8)  

In the case of a child who has a parent by virtue of section 42 or 43

of the Human Fertilisation and Embryology Act 2008, the

reference in sub-paragraph (1)(a) to the child’s father is a reference

to the woman who is a parent of the child by virtue of that section.”

Human Fertilisation and Embryology Act 1990 (c. 37)

20

32    (1)  

Section 32 of the 1990 Act (information to be provided to Registrar General)

is amended as follows.

      (2)  

In subsection (1)—

(a)   

for “man” substitute “person”, and

(b)   

for “father” substitute “parent”.

25

      (3)  

In subsection (2), for the words from “that the man” to “section 28 of this

Act” substitute “that the person may be a parent of the child by virtue of any

of the relevant statutory provisions”.

      (4)  

After subsection (2) insert—

“(2A)   

In subsection (2) “the relevant statutory provisions” means—

30

(a)   

section 28 of this Act, and

(b)   

sections 35 to 47 of the Human Fertilisation and Embryology

Act 2008.”

33         

In section 34 of the 1990 Act (disclosure in the interests of justice), in

subsection (1), after “of this Act” insert “or sections 33 to 47 of the Human

35

Fertilisation and Embryology Act 2008”.

34    (1)  

Section 35 of the 1990 Act (disclosure of information in the interests of

justice: congenital disabilities etc.) is amended as follows.

      (2)  

In subsections (1) and (2), for “sections 27 to 29 of this Act” substitute “the

relevant statutory provisions”.

40

 

 

Human Fertilisation and Embryology Bill [HL]
Schedule 6 — Amendments relating to parenthood in cases involving assisted reproduction
Part 1 — General

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      (3)  

After subsection (2) insert—

“(2A)   

In subsections (1) and (2) “the relevant statutory provisions”

means—

(a)   

sections 27 to 29 of this Act, and

(b)   

sections 33 to 47 of the Human Fertilisation and Embryology

5

Act 2008.”

Child Support Act 1991 (c. 48)

35         

In section 26 of the Child Support Act 1991 (disputes about parentage), in

subsection (2), for Cases B and B1 substitute—

“CASE B

10

   

Where the alleged parent is a parent of the child in question by virtue

of an order under section 30 of the Human Fertilisation and

Embryology Act 1990 or section 54 of the Human Fertilisation and

Embryology Act 2008 (parental orders).

CASE B1

15

   

Where the Secretary of State is satisfied that the alleged parent is a

parent of the child in question by virtue of section 27 or 28 of the

Human Fertilisation and Embryology Act 1990 or any of sections 33

to 46 of the Human Fertilisation and Embryology Act 2008 (which

relate to children resulting from assisted reproduction).”

20

Family Law Act 1996 (c. 27)

36         

In section 63 of the Family Law Act 1996 (definition of family proceedings),

in subsection (2), for paragraph (h) substitute—

“(h)   

section 54 of the Human Fertilisation and Embryology Act

2008;”.

25

Access to Justice Act 1999 (c. 22)

37         

In Schedule 2 to the Access to Justice Act 1999 (community legal services:

excluded services), in paragraph 2(3), for paragraph (f) substitute—

“(f)   

under section 54 of the Human Fertilisation and

Embryology Act 2008,”.

30

Adoption and Children Act 2002 (c. 38)

38    (1)  

Section 51 of the Adoption and Children Act 2002 (adoption by one person)

is amended as follows.

      (2)  

In subsection (4), for paragraph (b) substitute—

“(b)   

by virtue of the provisions specified in subsection (5), there is

35

no other parent, or”.

      (3)  

After subsection (4) insert—

“(5)   

The provisions referred to in subsection (4)(b) are—

(a)   

section 28 of the Human Fertilisation and Embryology Act

1990 (disregarding subsections (5A) to (5I) of that section), or

40

 

 

Human Fertilisation and Embryology Bill [HL]
Schedule 6 — Amendments relating to parenthood in cases involving assisted reproduction
Part 2 — Enactments relating only to Scotland

85

 

(b)   

sections 34 to 47 of the Human Fertilisation and Embryology

Act 2008 (disregarding sections 39, 40 and 46 of that Act).”

Mental Capacity Act 2005 (c. 9)

39         

In section 27 of the Mental Capacity Act 2005 (family relationships), in

subsection (1), after paragraph (h) insert—

5

“(i)   

giving a consent under the Human Fertilisation and

Embryology Act 2008.”

Part 2

Enactments relating only to Scotland

Children and Young Persons (Scotland) Act 1937 (c. 37)

10

40         

In section 110(1) of the Children and Young Persons (Scotland) Act 1937

(interpretation), in the definition of “parental responsibilities”—

(a)   

the words from “a father” to the end become paragraph (a), and

(b)   

after that paragraph insert—

“(b)   

a second female parent would have as a parent but for

15

the operation of section 3(1)(d) of that Act.”

Registration of Births, Deaths and Marriages (Scotland) Act 1965 (c. 49)

41         

In section 14 of the Registration of Births, Deaths and Marriages (Scotland)

Act 1965 (duty to give information of particulars of birth), after subsection

(4) insert—

20

“(4A)   

In the case of a child who has a parent by virtue of section 42 of the

Human Fertilisation and Embryology Act 2008, the references in

subsections (1) and (2) to the father of the child are to be read as

references to the woman who is a parent by virtue of that section.”

42         

For section 18ZA of the Registration of Births, Deaths and Marriages

25

(Scotland) Act 1965 substitute—

“18ZA   

 Registration of father or second female parent by virtue of certain

provisions of the Human Fertilisation and Embryology Act 2008

(1)   

The registrar shall not enter in the register—

(a)   

as the father of a child the name of a man who is to be treated

30

for that purpose as the father of the child by virtue of section

39(1) or 40(1) or (2) of the Human Fertilisation and

Embryology Act 2008 (circumstances in which man to be

treated as father of child for purpose of registration of birth

where fertility treatment undertaken after his death); or

35

(b)   

as a parent of the child, the name of a woman who is to be

treated for that purpose as a parent of the child by virtue of

section 46(1) or (2) of that Act (circumstances in which

woman to be treated as parent of child for purposes of

registration of birth where fertility treatment undertaken

40

after her death),

   

unless the condition in subsection (2) below is satisfied.

(2)   

The condition in this subsection is satisfied if—

 

 

Human Fertilisation and Embryology Bill [HL]
Schedule 6 — Amendments relating to parenthood in cases involving assisted reproduction
Part 2 — Enactments relating only to Scotland

86

 

(a)   

the mother requests the registrar to make such an entry in the

register and produces the relevant documents; or

(b)   

in the case of the death or inability of the mother, the relevant

documents are produced by some other person who is a

qualified informant.

5

(3)   

In this section “the relevant documents” means—

(a)   

the consent in writing and election mentioned in section

39(1), 40(1) or (2) or 46(1) or (2) (as the case requires) of the

Human Fertilisation and Embryology Act 2008;

(b)   

a certificate of a registered medical practitioner as to the

10

medical facts concerned; and

(c)   

such other documentary evidence (if any) as the registrar

considers appropriate.”

43         

After section 18A of the Registration of Births, Deaths and Marriages

(Scotland) Act 1965 insert—

15

“18B    

Births of children where second female parent by virtue of section 43

of the Human Fertilisation and Embryology Act 2008

(1)   

No woman shall as a parent of a child by virtue of section 43 of the

Human Fertilisation and Embryology Act 2008 (“the woman

concerned”) be required, as a parent of the child, to give information

20

concerning the birth of the child and, save as provided in section 20

of this Act, the district registrar for the registration district shall not

enter in the birth registration form concerning the birth the name and

surname of any woman as a parent of the child by virtue of section

43 of that Act of 2008 except—

25

(a)   

at the joint request of the mother and the person

acknowledging herself to be the other parent of the child (in

which case that person shall attest, in the prescribed manner,

the birth registration form together with the mother); or

(b)   

at the request of the mother on production of—

30

(i)   

a declaration in the prescribed form made by the

mother stating that the person is a parent of the child

by virtue of section 43 of the Human Fertilisation and

Embryology Act 2008; and

(ii)   

a statutory declaration made by the woman

35

concerned acknowledging herself to be a parent of the

child by virtue of section 43 of that Act; or

(c)   

at the request of the mother on production of a decree by a

competent court finding or declaring the woman concerned

to be a parent of the child by virtue of section 43 of that Act; or

40

(d)   

at the request of the woman concerned on production of—

(i)   

a declaration in the prescribed form made by the

woman concerned acknowledging herself to be a

parent of the child by virtue of section 43 of that Act;

and

45

(ii)   

a statutory declaration made by the mother stating

that the woman concerned is a parent of the child by

virtue of section 43 of that Act.

(2)   

Where a person acknowledging herself to be a parent of the child by

virtue of section 43 of the Human Fertilisation and Embryology Act

50

 

 

 
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