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
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44
The agreed female parenthood conditions
(1)
The agreed female parenthood conditions referred to in section 43(b) are met
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
5
being treated as a parent of any child resulting from treatment
provided to W under the licence,
(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),
10
given the person responsible notice of the withdrawal of P’s or W’s
consent to P 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 W consents to
15
a woman other than P being treated as a parent of any resulting
child, or
(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
20
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.
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,
25
no man is to be treated as the father of the child.
(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
30
virtue of any enactment or other rule of law, is treated as the child of the parties
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
35
(1)
If—
(a)
the child has been carried by W as the result of the placing in her of an
embryo,
(b)
the embryo was created at a time when W was a party to a civil
partnership,
40
(c)
the other party to the civil partnership died before the placing of the
embryo in the woman,
(d)
the other party to the civil partnership consented in writing (and did
not withdraw the consent)—

Human Fertilisation and Embryology Bill [HL]
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(i)
to the placing of the embryo in W after the death of the other
party, and
(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
5
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
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
10
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,

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.
15
(2)
If—
(a)
the child has been carried by W as the 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
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services provided to W in the United Kingdom by a person to whom a
licence applies,
(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
25
woman, and
(ii)
to being treated for the purpose mentioned in subsection (4) as
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
30
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
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
35
treated for the purpose mentioned in subsection (4) as the parent 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
of section 45(2) or (3), or
40
(ii)
as a parent of the child by virtue of section 42 or 43 or by virtue
of adoption,

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
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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
deceased woman’s particulars to be entered as the particulars of the child’s
other parent in a relevant register of births.

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(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.
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Woman not to be other parent merely because of egg donation
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—
5
(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
(c)
by virtue of adoption.
Effect of sections 33 to 47
10
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
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
15
parent of the child, that person is to be treated in law as not being a parent of
the child for any purpose.
(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
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(b)
is to be treated in law as not being the father of the child for any other
purpose.
(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
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(b)
is to be treated in law as not being a parent of the child for any other
purpose.
(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.
30
(6)
In relation to England and Wales and Northern Ireland, a child who—
(a)
has a parent by virtue of section 42, or
(b)
has a parent by virtue of section 43 who is at any time during the period
beginning with the time mentioned in section 43(b) and ending with the
time of the child’s birth a party to a civil partnership with the child’s
35
mother,

is the legitimate child of the child’s parents.
(7)
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—
(a)
affects the succession to any dignity or title of honour or renders any
40
person capable of succeeding to or transmitting a right to succeed to
any such dignity or title, or

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(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
honour.
(8)
In relation to Scotland—
(a)
those provisions do not apply to any title, coat of arms, honour or
5
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
(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
10
interest from so devolving.
References to parties to marriage or civil partnership
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—
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(a)
are to the parties to a marriage subsisting at that time, unless a judicial
separation was then in force, but
(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
20
shown, that one of them reasonably believed at that time that the
marriage was valid.
(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.
50
Meaning of references to parties to a civil partnership
25
(1)
The references in sections 35 to 47 to the parties to a civil partnership at the time
there referred to—
(a)
are to the parties to a civil partnership subsisting at that time, unless a
separation order was then in force, but
(b)
include the parties to a void civil partnership if either or both of them
30
reasonably believed at that time that the civil partnership 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 civil partnership was valid.
(2)
The reference in section 48(6)(b) to a civil partnership includes a reference to a
35
void civil partnership if either or both of the parties reasonably believed at the
time when they registered as civil partners of each other that the civil
partnership was valid; and for this purpose it is to be presumed, unless the
contrary is shown, that one of them reasonably believed at that time that the
civil partnership was valid.
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(3)
In subsection (1)(a), “separation order” means—
(a)
a separation order under section 37(1)(d) or 161(1)(d) of the Civil
Partnership Act 2004 (c. 33),
(b)
a decree of separation under section 120(2) of that Act, or

Human Fertilisation and Embryology Bill [HL]
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(c)
a legal separation obtained in a country outside the United Kingdom
and recognised in the United Kingdom.
Further provision about registration by virtue of section 39, 40 or 46
51
Meaning of “relevant register of births”
For the purposes of this Part a “relevant register of births”, in relation to a birth,
5
is whichever of the following is relevant—
(a)
a register of live-births or still-births kept under the Births and Deaths
Registration Act 1953 (c. 20),
(b)
a register of births or still-births kept under the Registration of Births,
Deaths and Marriages (Scotland) Act 1965 (c. 49), or
10
(c)
a register of live-births or still-births kept under the Births and Deaths
Registration (Northern Ireland) Order 1976 (S.I. 1976/1041 (N.I. 14)).
52
Late election by mother with consent of Registrar General
(1)
The requirement under section 39(1), 40(1) or (2) or 46(1) or (2) as to the making
of an election (which requires an election to be made either on or before the day
15
on which the child was born or within the period of 42 or, as the case may be,
21 days from that day) is nevertheless to be treated as satisfied if the required
election is made after the end of that period but with the consent of the
Registrar General under subsection (2).
(2)
The Registrar General may at any time consent to the making of an election
20
after the end of the period mentioned in subsection (1) if, on an application
made to him in accordance with such requirements as he may specify, he is
satisfied that there is a compelling reason for giving his consent to the making
of such an election.
(3)
In this section “the Registrar General” means the Registrar General for England
25
and Wales, the Registrar General of Births, Deaths and Marriages for Scotland
or (as the case may be) the Registrar General for Northern Ireland.
Interpretation of references to father etc. where woman is other parent
53
Interpretation of references to father etc.
(1)
Subsections (2) and (3) have effect, subject to subsections (4) and (6), for the
30
interpretation of any enactment, deed or any other instrument or document
(whenever passed or made).
(2)
Any reference (however expressed) to the father of a child who has a parent by
virtue of section 42 or 43 is to be read as a reference to the woman who is a
parent of the child by virtue of that section.
35
(3)
Any reference (however expressed) to evidence of paternity is, in relation to a
woman who is a parent by virtue of section 42 or 43, to be read as a reference
to evidence of parentage.
(4)
This section does not affect the interpretation of the enactments specified in
subsection (5) (which make express provision for the case where a child has a
40
parent by virtue of section 42 or 43).

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(5)
Those enactments are—
(a)
the Legitimacy Act (Northern Ireland) 1928 (c. 5 (N.I.)),
(b)
the Schedule to the Population (Statistics) Act 1938 (c. 12),
(c)
the Births and Deaths Registration Act 1953 (c. 20),
(d)
the Registration of Births, Deaths and Marriages (Special Provisions)
5
Act 1957 (c. 58),
(e)
Part 2 of the Registration of Births, Deaths and Marriages (Scotland) Act
1965 (c. 49),
(f)
the Congenital Disabilities (Civil Liability) Act 1976 (c. 28),
(g)
the Legitimacy Act 1976 (c. 31),
10
(h)
the Births and Deaths Registration (Northern Ireland) Order 1976 (S.I.
1976/1041 (N.I. 14)),
(i)
the British Nationality Act 1981 (c. 61),
(j)
the Family Law Reform Act 1987 (c. 42),
(k)
Parts 1 and 2 of the Children Act 1989 (c. 41),
15
(l)
Part 1 of the Children (Scotland) Act 1995 (c. 36),
(m)
section 1 of the Criminal Law (Consolidation) (Scotland) Act 1995
(c. 39), and
(n)
Parts 2, 3 and 14 of the Children (Northern Ireland) Order 1995 (S.I.
1995/755 (N.I. 2)).
20
(6)
This section does not affect the interpretation of references that fall to be read
in accordance with section 1(2)(a) or (b) of the Family Law Reform Act 1987 or
Article 155(2)(a) or (b) of the Children (Northern Ireland) Order 1995
(references to a person whose father and mother were, or were not, married to
each other at the time of the person’s birth).
25
Parental orders
54
Parental orders
(1)
On an application made by two people (“the applicants”), the court may make
an order providing for a child to be treated in law as the child of the applicants
if—
30
(a)
the child has been carried by a woman who is not one of the applicants,
as a result of the placing in her of an embryo or sperm and eggs or her
artificial insemination,
(b)
the gametes of at least one of the applicants were used to bring about
the creation of the embryo, and
35
(c)
the conditions in subsections (2) to (8) are satisfied.
(2)
The applicants must be—
(a)
husband and wife,
(b)
civil partners of each other, or
(c)
two persons who are living as partners in an enduring family
40
relationship and are not within prohibited degrees of relationship in
relation to each other.
(3)
Except in a case falling within subsection (11), the applicants must apply for the
order during the period of 6 months beginning with the day on which the child
is born.
45

Human Fertilisation and Embryology Bill [HL]
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(4)
At the time of the application and the making of the order—
(a)
the child’s home must be with the applicants, and
(b)
either or both of the applicants must be domiciled in the United
Kingdom or in the Channel Islands or the Isle of Man.
(5)
At the time of the making of the order both the applicants must have attained
5
the age of 18.
(6)
The court must be satisfied that both—
(a)
the woman who carried the child, and
(b)
any other person who is a parent of the child but is not one of the
applicants (including any man who is the father by virtue of section 35
10
or 36 or any woman who is a parent by virtue of section 42 or 43),

have freely, and with full understanding of what is involved, agreed
unconditionally to the making of the order.
(7)
Subsection (6) does not require the agreement of a person who cannot be found
or is incapable of giving agreement; and the agreement of the woman who
15
carried the child is ineffective for the purpose of that subsection if given by her
less than six weeks after the child’s birth.
(8)
The court must be satisfied that no money or other benefit (other than for
expenses reasonably incurred) has been given or received by either of the
applicants for or in consideration of—
20
(a)
the making of the order,
(b)
any agreement required by subsection (6),
(c)
the handing over of the child to the applicants, or
(d)
the making of arrangements with a view to the making of the order,

unless authorised by the court.
25
(9)
For the purposes of an application under this section—
(a)
in relation to England and Wales, section 92(7) to (10) of, and Part 1 of
Schedule 11 to, the Children Act 1989 (c. 41) (jurisdiction of courts)
apply for the purposes of this section to determine the meaning of “the
court” as they apply for the purposes of that Act and proceedings on the
30
application are to be “family proceedings” for the purposes of that Act,
(b)
in relation to Scotland, “the court” means the Court of Session or the
sheriff court of the sheriffdom within which the child is, and
(c)
in relation to Northern Ireland, “the court” means the High Court or
any county court within whose division the child is.
35
(10)
Subsection (1)(a) 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
or her artificial insemination.
(11)
An application which—
(a)
relates to a child born before the coming into force of this section, and
40
(b)
is made by two persons who, throughout the period applicable under
subsection (2) of section 30 of the 1990 Act, were not eligible to apply
for an order under that section in relation to the child as husband and
wife,

may be made within the period of six months beginning with the day on which
45
this section comes into force.