Clause 39: Use of sperm, or transfer of embryo, after death of man providing sperm

173.     Clause 39 replaces provisions inserted into the 1990 Act by the Human Fertilisation and Embryology (Deceased Fathers) Act 2003. Clause 39 applies where a man's sperm, or an embryo created with his sperm, is used after his death. The man may be treated as the child's father, for the purposes of birth registration only, if various conditions are met. The man must have consented, in writing, to the use of the sperm or embryo after his death and to being treated as the child's father for the purposes of birth registration. The woman must elect that he should be treated in this way within 42 days (or, in Scotland, 21 days) of the child's birth. This provision applies whether the embryo or gametes were transferred to the woman in the UK or elsewhere.

Clause 40: Embryo transferred after death of husband etc who did not provide sperm

174.     Clause 40 makes similar provision to clause 39 for the case where donated sperm has been used. If the woman was married at the time of creation of an embryo using donor sperm and her husband dies before transfer of the embryo to her, she may elect that he should be treated as the child's father for the purposes of birth registration, subject to the consents described above. If the woman and man were not married at the time of creation of the embryo, there are additional requirements in that the agreed fatherhood conditions must have been met immediately before the man's death and the embryo must have been created in the course of licensed treatment services in the UK.

Clause 41: Persons not to be treated as father

175.     This clause clarifies who is not the father of a child, for example a man who donates sperm for the treatment of another couple, or a man who has not consented to his sperm being used after his death.

Clause 42: Women in civil partnership at time of treatment

176.     Clause 42 makes provision not found in the 1990 Act which brings the provision for female civil partners into line with that which applies to married couples. Where a female civil partner gives birth to a child conceived as a result of DI (anywhere in the world), she is the mother of the child and her civil partner will automatically be the other parent, unless the other civil partner did not consent to the mother's treatment. The terminology is different, but otherwise the legal provisions are the same as for married couples.

Clauses 43 and 44: Female parenthood conditions

177.     Clauses 43 and 44 make provision about same-sex female couples who are not civil partners. This is similar to the provision made about opposite-sex unmarried couples by clauses 36 and 37. Where one of the women has a child as a result of DI in a UK licensed clinic and the couple have in place, at the time of the transfer of the sperm or embryo which results in conception, current notices of consent to the other woman being treated as a parent, then she will be a legal parent. The same provisions about withdrawing consent and providing information to the other party will apply (see note on clauses 36 and 37). Again, notice cannot be given by two persons who are within the prohibited degrees of relationship to each other.

Clause 45: Further provision relating to sections 42 and 43

178.     Clause 45 provides that clauses 42 and 43 will not affect who is to be considered the parent of a child in various circumstances such as the presumption that a child is the legitimate child of a married couple or if the child had been adopted.

Clause 46: Embryo transferred after death of civil partner or intended female parent

179.     This clause makes provision about registration of a deceased same sex partner as a child's parent in the register of births in certain circumstances. The provision for civil partners is comparable to that under clause 40 for married couples using donor sperm. The provision for other same sex couples is comparable to that for unmarried couples using donor sperm.

Clause 47: Woman not to be other parent merely because of egg donation

180.     Clause 47 makes clear that where a woman has not carried a child she will only be treated as a parent of the child if the provisions relating to parenthood of the mother's partner apply, or she has adopted the child. Egg donation will not make a woman the parent of a child carried by another woman. Parenthood could however be conferred by other legal provisions in this case (for example, if a woman donated an egg to her female partner, and the agreed female parenthood conditions were met in relation to her).

Clause 48: Effect of sections 33 to 47

181.     Clause 48 further explains the effect of the provisions of clauses 33 to 47. Where these provisions treat a person as the mother, father or parent of a child, or as not being the parent of the child, this status will apply for all legal purposes. However if a deceased man or woman is treated as the father or parent of a child under clauses 39, 40 and 46 this will only apply for the purpose of birth registration and will not apply for any other purpose.

182.     The new parenthood provisions do not affect the succession to any dignity or title of honour in England, Wales and Northern Ireland or any property rights that relate to them. The provisions do not apply to any title, coat of arms, honour or dignity in Scotland or any property interest under the terms of a deed from devolving.

Clause 52: Late election by mother with consent of Registrar General

183.     This clause allows for extension of the period during which a woman may elect for her deceased partner to be treated as her child's parent for the purposes of birth registration, with the consent of the relevant Registrar General.

Clause 53: Interpretation of references to father etc.

184.     Clause 53 provides for references to a child's father in legislation and in other documents whenever passed or made to be read, in relevant cases, as references to a woman who is the child's parent by virtue of the Bill's provision for parenthood in clauses 42 and 43. Although some legislation is expressly amended by Schedule 6 to take account of the possibility that a child may have two female parents, this provision reduces the need for additional consequential amendments.

Clause 54: Parental orders

185.      In clause 54 there are new provisions extending the categories of couples who can apply for a parental order (fast track adoption) where a child has been conceived using the gametes of at least one of the couple, and has been carried by a surrogate mother. Currently, only married couples can apply for a parental order. Under the new provisions, civil partners would also be able to apply, as would unmarried opposite-sex couples or same-sex couples not in a civil partnership. The other provisions relating to parental orders remain the same as the existing provisions of the 1990 Act. A single person remains unable to apply, but would be able to apply to adopt the child from the surrogate mother.

Clause 56: Amendments relating to parenthood in cases involving assisted reproduction

186.     Clause 56 introduces Schedule 6, which contains amendments relating to parenthood in cases involving assisted reproduction.

AMENDMENTS IN PART 1 OF SCHEDULE 6

Births and Deaths Registration Act 1953

187.     Paragraphs 1 and 2 of Schedule 6 amend sections 1 and 2 of the Births and Deaths Registration Act 1953 (particulars of births to be registered and information concerning birth to be given to registrar within 42 days) ("the 1953 Act") so that the provisions extend to include a woman who is the parent of a child by virtue of clause 42 or 43 of the Bill. She is to be treated as the father for the purposes of the provisions.

188.     Paragraphs 3 and 4 amend sections 9 and 10 of the 1953 Act (registration of father where parents are not married) so as to make provision for registration of the birth of a child where the second female parent of the child is not the civil partner of the mother (i.e. where clause 43 of the Bill applies).

189.     Paragraph 5 substitutes section 10ZA of the 1953 Act (registration of father by virtue of certain provisions of the 1990 Act) with a new section that applies both to fathers and to women who are to be treated as a parent by virtue of clause 46 of the Bill.

190.     Paragraph 6 amends section 10A of the 1953 Act (re-registration where parents not married) so that it applies to re-registration where a woman is a parent of a child by virtue of clause 43 or 46(1) or (2) of the Bill.

191.     Paragraph 7 amends section 13 of the 1953 Act (registration of name or of alteration of name) so that a woman who is a parent of a child by virtue of clause 42 or 43 of the Bill is treated in the same way as a father of a child.

192.     Paragraph 8 amends section 14 of the 1953 Act (re-registration of births of legitimated persons) to reflect consequential amendments to the Legitimacy Act 1976 as outlined below so that section 14 applies in the case of a legitimated person who is the child of a person who is the parent of the child by virtue of clause 43 of the Bill.

193.     Paragraph 9 amends section 29A of the 1953 Act (alternative procedure for certain corrections of the register) so as to provide for correction of the register where a woman is wrongly registered as a parent of a person by virtue of clause 42, 43 or 46(1) or (2) of the Bill.

Registration of Births, Deaths and Marriages (Special Provisions) Act 1957

194.     Paragraph 10 of Schedule 6 extends section 3A of the Registration of Births, Deaths and Marriages (Special Provisions) Act 1957 (alternative procedure for certain corrections to the register) ("the 1957 Act") so as to provide for correction of the register where a woman is wrongly registered as a parent of a person by virtue of clause 42, 43 or 46(1) or (2) of the Bill.

195.     Paragraph 11 amends section 5 of the 1957 Act (registration or re-registration of births of legitimated persons in the Service Departments Registers) to make provision in respect of the Service Departments Registers for a second female parent of a child by virtue of clause 43 of the Bill to register or re-register a child following the subsequent formation of a civil partnership between the child's parents.

Family Law Reform Act 1969

196.     Paragraph 12 of Schedule 6 amends the definition of "excluded" in section 25 of the Family Law Reform Act 1969 (interpretation of Part 3) so that "excluded" also includes excluded by virtue of clauses 33 to 47 of the Bill. The definition is relevant to section 20 of the 1969 Act which concerns the situation where the parentage of any person falls to be determined in civil proceedings. A report to the court must state whether any party to whom the report relates is or is not excluded by the results from being the father or mother of the person whose parentage is to be determined.

Congenital Disabilities (Civil Liability) Act 1976

197.     Paragraph 13 of Schedule 6 amends section 1 of the Congenital Disabilities (Civil Liability) Act 1976 (civil liability to a child who is born disabled) ("the 1976 Act") to extend the reference to "father" to include a woman who is the second female parent of a child by virtue of clause 42 or 43 of the Bill.

198.     Paragraph 14 amends section 4 of the 1976 Act (interpretation) so that references in section 1 of the Act to a parent include a person who would be a parent but for clauses 33 to 47 of the Bill.

Legitimacy Act 1976

199.     Paragraphs 15 inserts new section 2A and paragraphs 16 to 18 amend sections 3, 9 and 10 of the Legitimacy Act 1976 to extend the existing provision to enable women who enter into a civil partnership, and who have had children together previously by assisted conception, to legitimate those children as from the date of the formation of the civil partnership.

Magistrates' Courts Act 1980

200.     Paragraph 19 amends section 65(1)(na) of the Magistrates' Courts Act 1980 (meaning of family proceedings) by replacing a reference to section 30 of the 1990 Act (which is repealed by the Bill) with a reference to clause 54 of the Bill (parental orders).

Supreme Court Act 1981

201.     Paragraph 20 amends Schedule 1 to the Supreme Court Act 1981 to include parental orders under clause 54 of the Bill as matters to be assigned to the Family Division of the High Court.

British Nationality Act 1981

202.     Paragraph 21 amends subsection (9A) of section 50 of the British Nationality Act 1981 (meaning of a child's father) to include, as "father" of a child for the purposes of that Act, the person who is to be treated as father of the child under section 28 of the 1990 Act or clause 35 or 36 of the Bill (the husband of a woman who has a child by assisted conception or the male partner of an unmarried woman who has a child by assisted conception if the couple have a fatherhood agreement together) or the second female parent under clause 42 or 43 (when the mother is in a civil partnership or has a parenthood agreement in place).

Family Law Act 1986

203.     Paragraph 22 inserts a reference to the proposed amendment inserting the new section 2A of the Legitimacy Act 1976 into section 56(5)(a) of the Family Law Act 1986 (declarations of the High Court or a county court regarding the parentage, legitimacy or legitimation of a person). This amendment extends the definition of a "legitimated person" to include someone who becomes legitimated under the new section 2A.

Family Law Reform Act 1987

204.     Paragraph 23 amends section 1 of the Family Law Reform Act 1987 (general principles) ("the 1987 Act") so that references in that Act and Acts passed subsequently to someone whose father and mother were married to each other at the time of birth are extended to include a person who was conceived through assisted conception at a time when their mother was in a civil partnership with another woman, or whose mother and second female parent were treated in a licensed clinic and had a parenthood agreement in force at the time the person's mother was treated and who were civil partners either at the time of the child's birth or at any time between treatment and the child's birth. The amendments provide for civil partnerships which are void to be treated as valid for the purposes of this provision, where either or both of the parties reasonably believed that the civil partnership was valid.

205.     Paragraph 24 amends section 18 of the 1987 Act (succession on intestacy) so that references to "father" include a second female parent under clause 43 not in a civil partnership. Section 18 sets out the presumption that a person is not survived by a unmarried father who was not married to a child's mother at the time of birth unless the contrary is shown, in cases of intestacy.

Children Act 1989

206.     Paragraph 25 amends section 2 of the Children Act 1989 ("the 1989 Act") to enable a second female parent to have parental responsibility for a child. A second female parent will have parental responsibility automatically where she and the mother of the child are in a civil partnership at the time of the fertility treatment, or where the mother and second female parent were civil partners either by the time of the child's birth or at any time between treatment and the child's birth. The second female parent will also have parental responsibility if she acquires it in accordance with the provisions of the Act.

207.     Paragraph 26 inserts a new section 4ZA into the 1989 Act (acquisition of parental responsibility by second female parent under clause 43). This new section enables a second female parent to acquire parental responsibility by registering as the child's parent in the register of births, by making a parental responsibility agreement with the child's mother, or by obtaining a court order.

208.     Paragraph 27 inserts in section 12 of the 1989 Act (residence orders and parental responsibility) a new subsection (1A) which replicates for second female parents the provision for fathers in subsection (1) of that section. This means that where a court makes a residence order in favour of a second female parent under clause 43 and she does not already have parental responsibility the court must also make a parental responsibility order under new section 4ZA.

209.     Paragraph 28 amends section 91 of the 1989 Act (duration of orders) so that an order or agreement under new section 4ZA continues in force until the child is 18 unless it is brought to an earlier end.

210.     Paragraphs 29 and 30 make minor amendments to section 104 (regulations and orders) and section 105 (interpretation) to take account of new section 4ZA.

211.     Paragraph 31 extends references in Schedule 1 to the 1989 Act (financial provision for children) so that references to a child's father will also apply to a second female parent.

Human Fertilisation and Embryology Act 1990

212.     Paragraph 32 amends section 32 of the 1990 Act to take account of children with a second female parent under clause 42 or 43 in cases where the Act enables the HFEA to comply with a request from the Registrar General to disclose information from the HFEA's register in respect of the parenthood of a child.

213.     Paragraph 34 amends section 35 of the 1990 Act (disclosure of information: congenital disabilities) to update the reference to the provisions which determine the legal parenthood of a child if a court makes an order requiring the HFEA to disclose information from the HFEA's register for the purposes of proceedings under the Congenital Disabilities (Civil Liability) Act 1976.

Child Support Act 1991

214.     Paragraph 35 of Schedule 6 amends section 26 of the Child Support Act 1991 (disputes about parentage) to include a reference to parenthood acquired via the new provisions for parental orders in clause 54 of the Bill; and also to the new parenthood provisions in Part 2 of the Bill.

Family Law Act 1996

215.     Paragraph 36 amends section 63(2)(h) of the Family Law Act 1996 (definition of family proceedings) by replacing a reference to section 30 of the 1990 Act (which is repealed by the Bill) with a reference to clause 54 (parental orders) of the Bill.

Access to Justice Act 1999

216.     Paragraph 37 amends paragraph 2(3)(f) of Schedule 2 to the Access to Justice Act 1999 (community legal services: excluded services) by replacing a reference to section 30 of the 1990 Act (which is repealed by the Bill) with a reference to section 54 (parental orders) of the Bill.

Adoption and Children Act 2002

217.     Paragraph 38 amends section 51 of the Adoption and Children Act 2002 (adoption by one person) which refers to cases where by virtue of section 28 of the 1990 Act (disregarding subsections (5A) to (5I) of that section) the child has no other parent, to include a reference to cases where by virtue of clauses 34 to 47 of the Bill (disregarding clauses 39, 40 and 46) there is no other parent.

Mental Capacity Act 2005

218.     Paragraph 39 amends section 27 of the Mental Capacity Act 2005 (family relationships) to clarify that the provisions of the Mental Capacity Act 2005 do not enable a decision on the giving of consent under the Bill to be made on behalf of another person.

AMENDMENTS IN PART 2 OF SCHEDULE 6

Children and Young Persons (Scotland) Act 1937

219.     Paragraph 40 amends section 110(1) of the Children and Young Persons (Scotland) Act 1937 ("the 1937 Act"). This amendment provides that a second female parent is to be considered to have parental responsibilities for the purpose of offences under the 1937 Act, even where they have not registered for such responsibility under section 3(1)(d) of the Children (Scotland) Act 1995. This provides parity with the position for unmarried fathers who have not registered their parental rights and responsibilities under section 3(1)(b) of the Children (Scotland) Act 1995.

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

220.     Paragraph 41 of Schedule 6 amends section 14 of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 ("the 1965 Act") so that the provisions regarding the obligation to provide information relating to a birth extend to include a woman who is the second female parent of a child by virtue of clause 42 of the Bill.

221.     Paragraph 42 substitutes existing section 18ZA of the 1965 Act (which governs circumstances in which a man is treated as the father if fertility treatment took place after his death) with a new provision which deals with both fathers and second female parents in that situation.

222.     Paragraph 43 inserts new section 18B into the 1965 Act to apply equivalent provisions to those which deal with registration of a birth by an unmarried father to a person who is the second female parent by virtue of clause 43 of the Bill.

223.     Paragraph 44 of Schedule 6 amends section 20 of the 1965 Act to accommodate within Scottish registration law the new category of second female parent created by clause 43 of the Bill.

Family Law (Scotland) Act 1985

224.     Paragraphs 45 and 46 of Schedule 6 amend sections 9(1)(c)(ii) and 27(1) of the Family Law (Scotland) Act 1985 to extend references to a "child of the family" in relation to civil partners to include a child who is a child of both partners, by virtue of clauses 33 and 42 (where the partners were in a civil partnership at the time of treatment).

Children (Scotland) Act 1995

225.     Paragraphs 47 to 49 of Schedule 6 amend sections 1(1), 2(1) and 3 of the Children (Scotland) Act 1995 ("the 1995 Act") to deal with circumstances in which a second female parent will have legal parental responsibility for, and parental rights in relation to, a child.

226.     Paragraphs 50 and 51 of Schedule 6 amend section 4 and section 11 of the 1995 Act in order that a second female parent who is not in a civil partnership can acquire parental responsibility, by making a parental responsibility agreement with the child's mother, or by obtaining a court order.

227.     Paragraph 52 of Schedule 6 amends section 12(4)(b) of the 1995 Act to extend the definition of "child of the family" in relation to civil partners. The extended definition includes a child who is a child of both partners, by virtue of clauses 33 and 42 (where the partners were in a civil partnership at the time of treatment).

Criminal Law (Consolidation) (Scotland) Act 1995

228.     Paragraph 54 of Schedule 6 amends section 1(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 so that the offence of incest applies as between mothers, fathers, second female parents (on the one hand) and their children (on the other) where that legal relationship is created as a result of this Bill.

Adoption and Children (Scotland) Act 2007

229.     Paragraph 55 substitutes section 30(7)(c) of the Adoption and Children (Scotland) Act 2007 to extend the circumstances in which a child can be adopted by one person, who is the child's natural parent, to include those where by virtue of section 28 of the 1990 Act (disregarding subsections (5A) to (5I) of that section) or clauses 34 to 47 of the Bill (disregarding clauses 39, 40 and 46) there is no other parent of the child.

AMENDMENTS IN PART 3 OF SCHEDULE 6

Legitimacy Act (Northern Ireland) 1928

230.     Paragraph 56 of Schedule 6 amends section 1 of the Legitimacy Act (Northern Ireland) 1928 to provide for the legitimation of a person born to a woman as a result of assisted conception if the woman had a parenthood agreement in place with a second female parent at the time of the effective treatment in a licensed clinic, and she was not, at the time the child was born, in a civil partnership with that woman, but subsequently enters a civil partnership with her, provided that the second female parent is domiciled in Northern Ireland. The legitimation takes effect from the date of the formation of the civil partnership.

231.     Paragraph 57 amends section 8 of the Legitimacy Act (Northern Ireland) 1928 so that where a child is born as a result of assisted conception in a licensed clinic and a parenthood agreement is in place between the child's mother and a second female parent, and the couple are not civil partners at the time of the child's birth, but subsequently enter a civil partnership, and the second female parent who becomes a civil partner is domiciled outside Northern Ireland, and the law of her country of domicile legitimises that child, the child, if living, shall, in Northern Ireland, be legitimated from the date of the formation of the civil partnership.

Births and Deaths Registration (Northern Ireland) Order 1976

232.     Paragraph 59 of Schedule 6 amends Article 10 of the Birth and Deaths Registration (Northern Ireland) Order 1976 to provide that the references to 'father' in Article 10(3) and (4) apply when a child who was conceived by assisted conception has a parent who is the civil partner of her mother, or has a second female parent because a parenthood agreement was in place at the time of the effective assisted conception treatment.

233.     Paragraph 60 makes provision for the various ways in which a birth may be registered, where a mother and second female parent under clause 43 have a child through assisted conception in a licensed clinic, are not civil partners but a parenthood agreement is in place. The registration may be made either by the couple together or separately, with appropriate formal declarations if the other party is not present, including as appropriate the provision of the parenthood agreement.

234.     Paragraph 61 provides for the registration of a birth where a civil partner or intended female parent with a parenthood agreement in place dies before the fertility treatment which results in the birth of a child.

235.     Paragraphs 62 and 63 provide for the re-registration of births where a child is born as a result of assisted conception to female civil partners, or to a female couple where a parenthood agreement is in place, and there is no other person who is, in law, the father or parent of the child.

236.     Paragraph 65 amends Article 37 of the 1976 Order by extending the definition of "qualified applicant" to include a second female parent in cases where the second female parent has parental responsibility for the child whether or not she is the civil partner of the child's mother.