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 1 — Amendments of the Human Fertilisation and Embryology Act 1990
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31
Power to make consequential provision
After section 45 of the 1990 Act (regulations) insert—
“45A
Power to make consequential provision
(1)
The Secretary of State may by order make such provision modifying
any provision made by or under any enactment as the Secretary of State
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considers necessary or expedient in consequence of any provision
made by regulations under any of the relevant provisions of this Act.
(2)
For the purposes of subsection (1), “the relevant provisions of this Act”
are—
(a)
section 1(6) (power to include things within the meaning of
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“embryo” and “gametes” etc.);
(b)
section 4A(11) (power to amend definition of “human admixed
embryo” and other terms).
(3)
Before making an order under this section containing provision which
would, if included in an Act of the Scottish Parliament, be within the
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legislative competence of that Parliament, the Secretary of State must
consult the Scottish Ministers.
(4)
Before making an order under this section containing provision which
would be within the legislative competence of the National Assembly
for Wales if it were included in a Measure of the Assembly (or, if the
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order is made after the Assembly Act provisions come into force, an Act
of the Assembly), the Secretary of State must consult the Welsh
Ministers.
(5)
Before making an order under this section containing provision which
would if included in an Act of the Northern Ireland Assembly, be
25
within the legislative competence of that Assembly, the Secretary of
State must consult the Department of Health, Social Services and Public
Safety.
(6)
In this section—
“enactment” means—
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(a)
an Act of Parliament (other than this Act),
(b)
an Act of the Scottish Parliament,
(c)
a Measure or Act of the National Assembly for Wales, or
(d)
Northern Ireland legislation,
whenever passed or made;
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“modify” includes amend, add to, revoke or repeal;
“the Assembly Act provisions” has the meaning given by section
103(8) of the Government of Wales Act 2006.”
32
Orders under the 1990 Act
After section 45A (inserted by section 31 above) insert—
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“45B
Orders
(1)
The power to make an order under section 8C(1)(c) or 45A of this Act
shall be exercisable by statutory instrument.

Human Fertilisation and Embryology Bill [HL]
Part 2 — Parenthood in cases involving assisted reproduction
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(2)
The power to make an order under section 8C(1)(c) or 45A of this Act
includes power to make such transitional, incidental or supplemental
provision as the Secretary of State considers appropriate.
(3)
A statutory instrument containing an order made by the Secretary of
State by virtue of section 8C(1)(c) shall be subject to annulment in
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pursuance of a resolution of either House of Parliament.
(4)
The Secretary of State shall not make an order by virtue of section 45A
unless a draft has been laid before and approved by a resolution of each
House of Parliament.”
Part 2
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Parenthood in cases involving assisted reproduction
Meaning of "mother"
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Meaning of “mother”
(1)
The woman who is carrying or has carried a child as a result of the placing in
her of an embryo or of sperm and eggs, and no other woman, is to be treated
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as the mother of the child.
(2)
Subsection (1) does not apply to any child to the extent that the child is treated
by virtue of adoption as not being the woman’s child.
(3)
Subsection (1) applies whether the woman was in the United Kingdom or
elsewhere at the time of the placing in her of the embryo or the sperm and eggs.
20
Application of sections 35 to 47
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Application of sections 35 to 47
(1)
Sections 35 to 47 apply, in the case of a child who is being or has been carried
by a woman (referred to in those sections as “W”) as a result of the placing in
her of an embryo or of sperm and eggs or her artificial insemination, to
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determine who is to be treated as the other parent of the child.
(2)
Subsection (1) has effect subject to the provisions of sections 39, 40 and 46
limiting the purposes for which a person is treated as the child’s other parent
by virtue of those sections.
Meaning of "father"
30
35
Woman married at time of treatment
(1)
If—
(a)
at the time of the placing in her of the embryo or of the sperm and eggs
or of her artificial insemination, W was a party to a marriage, and
(b)
the creation of the embryo carried by her was not brought about with
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the sperm of the other party to the marriage,

then, subject to section 38(2) to (4), the other party to the marriage is to be
treated as the father of the child unless it is shown that he did not consent to

Human Fertilisation and Embryology Bill [HL]
Part 2 — Parenthood in cases involving assisted reproduction
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the placing in her 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)(a).
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Treatment provided to woman where agreed fatherhood conditions apply
5
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 W was
artificially inseminated, in the course of treatment services provided in
the United Kingdom by a person to whom a licence applies,
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(b)
at the time when the embryo or the sperm and eggs were placed in W,
or W was artificially inseminated, the agreed fatherhood conditions (as
set out in section 37) were satisfied in relation to a man, in relation to
treatment provided to W under the licence,
(c)
the man remained alive at that time, and
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(d)
the creation of the embryo carried by W was not brought about with the
man’s sperm,
then, subject to section 38(2) to (4), the man is to be treated as the father of the
child.
37
The agreed fatherhood conditions
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(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
being treated as the father of any child resulting from treatment
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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),
given the person responsible notice of the withdrawal of M’s or W’s
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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
to another man being treated as the father of any resulting child,
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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
to each other.
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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.
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
or 36, no other person is to be treated as the father of the child.
45

Human Fertilisation and Embryology Bill [HL]
Part 2 — Parenthood in cases involving assisted reproduction
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(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
virtue of any enactment or other rule of law, is treated as the child of the parties
5
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
(1)
If—
10
(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
brought about using the sperm of a man before his death but the
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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
the placing in W after his death of the embryo which was
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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
from the day on which the child was born for the man to be treated for
25
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
(ii)
as a parent of the child by virtue of section 42 or 43 or by virtue
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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
the time of the placing in her of the embryo or of the sperm and eggs or of her
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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.
(4)
In the application of this section to Scotland, for any reference to a period of 42
40
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
embryo,
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Human Fertilisation and Embryology Bill [HL]
Part 2 — Parenthood in cases involving assisted reproduction
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(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
W,
5
(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
the father of any resulting child,
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(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—
(i)
as the father of the child by virtue of section 35 or 36 or by virtue
15
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
father of the child.
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(2)
If—
(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
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provided to W in the United Kingdom by a person to whom a licence
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
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the father of any resulting child,
(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
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set out in section 37 were met in relation to the man in relation to
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
40
the purpose mentioned in subsection (4) as the father of the child, and
(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
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of adoption,

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.
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Human Fertilisation and Embryology Bill [HL]
Part 2 — Parenthood in cases involving assisted reproduction
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(4)
The purpose referred to in subsections (1) and (2) 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.
(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.
5
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Persons not to be treated as father
(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
10
father of the child.
(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
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the time of the placing in her of the embryo or of the sperm and eggs or of her
artificial insemination.
Cases in which woman to be other parent
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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
20
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
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).
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(2)
This section applies whether W was in the United Kingdom or elsewhere at the
time mentioned in subsection (1).
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—
30
(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
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
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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
(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.
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