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Human Fertilisation and Embryology Bill [HL]


Human Fertilisation and Embryology Bill [HL]
Part 2 — Parenthood in cases involving assisted reproduction

36

 

(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.

Application of sections 35 to 47

34      

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

5

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

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

10

by virtue of those sections.

Meaning of “father”

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

15

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

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

20

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).

36      

Treatment provided to woman where agreed fatherhood conditions apply

25

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,

30

(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

35

(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.

 
 

Human Fertilisation and Embryology Bill [HL]
Part 2 — Parenthood in cases involving assisted reproduction

37

 

37      

The agreed fatherhood conditions

(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

5

being treated as the father of any child resulting from treatment

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),

10

given the person responsible notice of the withdrawal of M’s or W’s

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

15

to another man being treated as the father of any resulting child,

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

20

to 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.

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

25

or 36, no other person is to be treated as the father of the child.

(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

30

virtue of any enactment or other rule of law, is treated as the child of the parties

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

35

(1)   

If—

(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

40

brought about using the sperm of a man before his death but the

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

45

 
 

Human Fertilisation and Embryology Bill [HL]
Part 2 — Parenthood in cases involving assisted reproduction

38

 

the placing in W after his death of the embryo which was

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

5

from the day on which the child was born for the man to be treated for

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

10

(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 (3) as the

father of the child.

(2)   

Subsection (1) applies whether W was in the United Kingdom or elsewhere at

15

the time of the placing in her of the embryo or of the sperm and eggs or of her

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.

20

(4)   

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.

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

25

embryo,

(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

30

W,

(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

35

the father of any resulting child,

(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—

40

(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

of adoption,

   

then the man is to be treated for the purpose mentioned in subsection (4) as the

45

father of the child.

(2)   

If—

 
 

Human Fertilisation and Embryology Bill [HL]
Part 2 — Parenthood in cases involving assisted reproduction

39

 

(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

provided to W in the United Kingdom by a person to whom a licence

5

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

the father of any resulting child,

10

(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

set out in section 37 were met in relation to a man in relation to

15

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

the purpose mentioned in subsection (4) as the father of the child, and

20

(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

of adoption,

25

   

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.

(4)   

The purpose referred to in subsections (1) and (2) is the purpose of enabling the

30

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.

41      

Persons not to be treated as father

35

(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

father of the child.

40

(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

the time of the placing in her of the embryo or of the sperm and eggs or of her

45

artificial insemination.

 
 

 
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