ARTIFICAL INSEMINATION AND SURROGACY
Individuals who are intending to have a child via assisted conception or donor insemination tend to plan meticulously for the arrival of their child, but frequently this doesn’t extend to taking legal advice.
The legal mother of any child is the birth mother irrespective of genetic parenthood and irrespective of whether the egg comes from a donor or the co-parent. The legal father or other parent of the child will depend on the circumstances.
If the birth mother is in a marriage of civil partnership at the time of conception, that spouse or civil partner is considered in law to be the father or other parent (and therefore will have parental responsibility), unless it is shown that they did not consent to the insemination. (Ss35 & 42 Human Fertilisation and Embryology Act 2008)
Example – lesbian couple, conceived by artificial insemination, one carries and gives birth to the baby. The birth mother is automatically a legal parent. Their partner would automatically become the other legal parent in law, if they were civil partners and if they agreed to the insemination.
Example 2 – Couples contemplating surrogacy, with anonymous sperm donor through a clinic. The birth mother is a legal parent. Her spouse/civil partner would become the other legal parent. The genetic father (ie. donor) would not automatically be a legal parent. If the couple are not married/civil partners, in order for the couple to become legal parents, rather than the birth mother, a Parental Order or adoption would need to be applied for.
NB – if the insemination is not done in a clinic, the anonymous donor would be the legal father and could apply for Child Arrangements Orders such as residence, contact etc.
The legal effect of such an order is similar to that of adoption – it allows the holders of the order to be treated as the legal parent of the child for all purposes.
There are a number of criteria to be met before an order can be made, which are set out in s54 HFEA. These are as follows:-
- There must be 2 applicants who are married/partners or in an enduring relationship
- The applicants must be over 18 years of age
- The child must have been conceived by assisted means and not via intercourse
- The child must be the genetic child of at least one applicant
- At least one applicant must be domiciled in the UK, Channel Islands and the Isle of Man
- At the time of the application, the child’s home must be with the applicants
- Both the birth parent and any other legal parent must have freely and with understanding agreed to the making of the order
- The application must be made within 6 months of the child’s birth.
The law in relation to insemination and surrogacy is complex. The information above is intended as a summary of this area of law therefore, it is important to take detailed advice about the implications of the scenario you are planning. Your specialist solicitor at Emery Johnson Astills can advise you. Please contact either our Leicester or Loughborough offices to make an appointment.