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]
Schedule 6 — Amendments relating to parenthood in cases involving assisted reproduction
Part 1 — General
88

(a)
a person (“the child”) has a parent (“the female parent”) by
virtue of section 43 of the Human Fertilisation and
Embryology Act 2008 (treatment provided to woman who
agrees that second woman to be parent),
(b)
at the time of the child’s birth, the female parent and the
5
child’s mother are not civil partners of each other,
(c)
the female parent and the child’s mother subsequently enter
into a civil partnership, and
(d)
the female parent is not at the time of the civil partnership
domiciled in England and Wales but is domiciled in a
10
country by the law of which the child became legitimated by
virtue of the civil partnership,

the child, if living, shall in England and Wales be recognised as
having been so legitimated from the date of the formation of the civil
partnership notwithstanding that, at the time of the child’s birth, the
15
female parent was domiciled in a country the law of which did not
permit legitimation by subsequent civil partnership.”
18
In section 9 of the Legitimacy Act 1976 (re-registration of birth of legitimated
persons)—
(a)
in subsection (1), after “marriage” insert “or of the formation of the
20
civil partnership”, and
(b)
in subsection (3), after “marriage” insert “or civil partnership”.
19
In section 10 of the Legitimacy Act 1976 (interpretation), in the definition of
“legitimated person”, in paragraph (a), after “section 2” insert “, 2A”.
Magistrates’ Courts Act 1980 (c. 43)
25
20
In section 65 of the Magistrates’ Courts Act 1980 (meaning of family
proceedings), in subsection (1), for paragraph (na) substitute—
“(na)
section 54 of the Human Fertilisation and Embryology Act
2008;”.
Supreme Court Act 1981 (c. 54)
30
21
In Schedule 1 to the Supreme Court Act 1981 (distribution of business in
High Court), in paragraph 3(f), for sub-paragraph (iv) substitute—
“(iv)
section 54 of the Human Fertilisation and
Embryology Act 2008;”.
British Nationality Act 1981 (c. 61)
35
22
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
1990 or section 35 or 36 of the Human Fertilisation and
40
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
(c)
where none of paragraphs (a) to (ba) applies, a person who
45
satisfies prescribed requirements as to proof of paternity.”

Human Fertilisation and Embryology Bill [HL]
Schedule 6 — Amendments relating to parenthood in cases involving assisted reproduction
Part 1 — General
89

Family Law Act 1986 (c. 55)
23
In section 56 of the Family Law Act 1986 (declarations of parentage,
legitimacy or legitimation), in subsection (5)(a), after “section 2” insert “,
2A”.
Family Law Reform Act 1987 (c. 42)
5
24    (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
been married to each other at the time of the child’s birth) after paragraph
(b) insert—
10
“(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
to a civil partnership or, in certain circumstances, a void civil
partnership);
15
(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—
(i)
is the civil partner of the child’s mother at the time of
the child’s birth, or
20
(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
birth;”.
      (3)
After subsection (4) insert—
25
“(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
each other both or either of the parties reasonably believed that the
civil partnership was valid.
30
(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
immediately before her death.
(7)
Subsection (5) applies even though the belief that the civil
35
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
partnership that the civil partnership was valid.”
40
25    (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
Human Fertilisation and Embryology Act 2008 (treatment provided
45

Human Fertilisation and Embryology Bill [HL]
Schedule 6 — Amendments relating to parenthood in cases involving assisted reproduction
Part 1 — General
90

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.”
      (3)
In subsection (3), for “section 50(1) of that Act” substitute “section 50(1) of
5
the Administration of Estates Act 1925”.
Children Act 1989 (c. 41)
26    (1)
Section 2 of the Children Act 1989 (parental responsibility for children) is
amended as follows.
      (2)
After subsection (1) insert—
10
“(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
to whom section 1(3) of the Family Law Reform Act 1987
15
applies,

the child’s mother and the other parent shall each have parental
responsibility for the child.”
      (3)
After subsection (2) insert—
“(2A)
Where a child has a parent by virtue of section 43 of the Human
20
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
child if she has acquired it (and has not ceased to have it) in
25
accordance with the provisions of this Act.”
27
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
Fertilisation and Embryology Act 2008 and is not a person to whom
30
section 1(3) of the Family Law Reform Act 1987 applies, that parent
shall acquire parental responsibility for the child if—
(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
35
her to have parental responsibility for the child; or
(c)
the court, on her application, orders that she shall have
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
40
10A(1B) of the Births and Deaths Registration Act 1953;
(b)
paragraphs (a), (b) and (d) of section 18B(1) and sections
18B(3)(a) and 20(1)(a) of the Registration of Births, Deaths
and Marriages (Scotland) Act 1965; and

Human Fertilisation and Embryology Bill [HL]
Schedule 6 — Amendments relating to parenthood in cases involving assisted reproduction
Part 1 — General
91

(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
add further enactments to the list in that subsection.
(4)
An agreement under subsection (1)(b) is also a “parental
5
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.
(5)
A person who has acquired parental responsibility under subsection
(1) shall cease to have that responsibility only if the court so orders.
10
(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
(b)
with the leave of the court, of the child himself,

subject, in the case of parental responsibility acquired under
15
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
proposed application.”
28    (1)
Section 12 of the Children Act 1989 (residence orders and parental
20
responsibility) is amended as follows.
      (2)
After subsection (1) insert—
“(1A)
Where the court makes a residence order in favour of a woman who
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
25
otherwise have parental responsibility for the child, also make an
order under section 4ZA giving her that responsibility.”
      (3)
In subsection (4)—
(a)
after “(1)” insert “or (1A)”,
(b)
after “4” insert “or 4ZA”, and
30
(c)
for “father” substitute “parent”.
29
In section 91 of the Children Act 1989 (effect and duration of orders)—
(a)
in subsection (7), after “4(1),” insert “4ZA(1),”, and
(b)
in subsection (8)(a), after “4” insert “, 4ZA”.
30
In section 104 of the Children Act 1989 (regulations and orders)—
35
(a)
in subsection (2), after “4(1B),” insert “4ZA(3),”, and
(b)
in subsection (3), after “4(1B)” insert “, 4ZA(3)”.
31
In section 105 of the Children Act 1989 (interpretation), in subsection (1), in
the definition of “parental responsibility agreement”, after “sections 4(1)”
insert “, 4ZA(4)”.
40
32    (1)
Schedule 1 to the Children Act 1989 (financial provision for children) is
amended as follows.

Human Fertilisation and Embryology Bill [HL]
Schedule 6 — Amendments relating to parenthood in cases involving assisted reproduction
Part 1 — General
92

      (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
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
5
that section.”
      (3)
At the end of paragraph 10 insert—
    “(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
10
to the woman who is a parent of the child by virtue of that section.”
Human Fertilisation and Embryology Act 1990 (c. 37)
33    (1)
Section 32 of the 1990 Act (information to be provided to Registrar General)
is amended as follows.
      (2)
In subsection (1)—
15
(a)
for “man” substitute “person”, and
(b)
for “father” substitute “parent”.
      (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”.
20
      (4)
After subsection (2) insert—
“(2A)
In subsection (2) “the relevant statutory provisions” means—
(a)
section 28 of this Act, and
(b)
sections 35 to 47 of the Human Fertilisation and Embryology
Act 2008.”
25
34
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
Fertilisation and Embryology Act 2008”.
35    (1)
Section 35 of the 1990 Act (disclosure of information in the interests of
justice: congenital disabilities etc.) is amended as follows.
30
      (2)
In subsections (1) and (2), for “sections 27 to 29 of this Act” substitute “the
relevant statutory provisions”.
      (3)
After subsection (2) insert—
“(2A)
In subsections (1) and (2) “the relevant statutory provisions”
means—
35
(a)
sections 27 to 29 of this Act, and
(b)
sections 33 to 47 of the Human Fertilisation and Embryology
Act 2008.”
Child Support Act 1991 (c. 48)
36
In section 26 of the Child Support Act 1991 (disputes about parentage), in
40

Human Fertilisation and Embryology Bill [HL]
Schedule 6 — Amendments relating to parenthood in cases involving assisted reproduction
Part 1 — General
93

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

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
5
Embryology Act 2008 (parental orders).
CASE B1

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
10
to 46 of the Human Fertilisation and Embryology Act 2008 (which
relate to children resulting from assisted reproduction).”
Family Law Act 1996 (c. 27)
37
In section 63 of the Family Law Act 1996 (definition of family proceedings),
in subsection (2), for paragraph (h) substitute—
15
“(h)
section 54 of the Human Fertilisation and Embryology Act
2008;”.
Access to Justice Act 1999 (c. 22)
38
In Schedule 2 to the Access to Justice Act 1999 (community legal services:
excluded services), in paragraph 2(3), for paragraph (f) substitute—
20
“(f)
under section 54 of the Human Fertilisation and
Embryology Act 2008,”.
Adoption and Children Act 2002 (c. 38)
39    (1)
Section 51 of the Adoption and Children Act 2002 (adoption by one person)
is amended as follows.
25
      (2)
In subsection (4), for paragraph (b) substitute—
“(b)
by virtue of the provisions specified in subsection (5), there is
no other parent, or”.
      (3)
After subsection (4) insert—
“(5)
The provisions referred to in subsection (4)(b) are—
30
(a)
section 28 of the Human Fertilisation and Embryology Act
1990 (disregarding subsections (5A) to (5I) of that section), or
(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)
35
40
In section 27 of the Mental Capacity Act 2005 (family relationships), in
subsection (1), after paragraph (h) insert—
“(i)
giving a consent under the Human Fertilisation and
Embryology Act 2008.”

Human Fertilisation and Embryology Bill [HL]
Schedule 6 — Amendments relating to parenthood in cases involving assisted reproduction
Part 2 — Enactments relating only to Scotland
94

Part 2
Enactments relating only to Scotland
Children and Young Persons (Scotland) Act 1937 (c. 37)
41
In section 110(1) of the Children and Young Persons (Scotland) Act 1937
(interpretation), in the definition of “parental responsibilities”—
5
(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
the operation of section 3(1)(d) of that Act.”
Registration of Births, Deaths and Marriages (Scotland) Act 1965 (c. 49)
10
42
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—
“(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
15
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.”
43
For section 18ZA of the Registration of Births, Deaths and Marriages
(Scotland) Act 1965 substitute—
“18ZA
Registration of father or second female parent by virtue of certain
20
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
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
25
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
(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
30
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
after her death),

unless the condition in subsection (2) below is satisfied.
35
(2)
The condition in this subsection is satisfied if—
(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
40
qualified informant.
(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;
45