Legal Parenthood

Question 1

[Baroness Hale] Psychological parent: ‘on a continuous, day-to-day basis…fulfils the child’s psychological needs for a parent, as well as the child’s physical needs.’

• day to day care, fulfils rights and duties of parent

Answer 1

Re G (Children)

Question 2

Parenthood is separate to Parental Responsibility

• also important in gay cases

Answer 2

Re A (Joint Residence : PR): Former cohabitant granted PR but ‘does not thereby become the father of the child’

Question 3

Who is the legal mother?

Answer 3

— GESTATIONAL MOTHER —
1. Natural
• Common law basis: Ampthill Peerage case

2. ART
   • S33(1) HFEA 2008

Important: s47 woman ≠ mother merely bc egg donation.

Question 4

If there is ART, who is the legal father?

Answer 4

• Follow statutory principles

— MARRIED M —
1. S35(1) HFEA 2008: If M is married, need to show if partner did not consent to treatment
• H=F unless no consent
• Cannot be rebutted by biological proof (unlike common law presumption that H = F)

— UNMARRIED M —
• At a licensed UK clinic
• S36 HFEA

1. S37 HFEA 2008: Agreed Fatherhood Conditions
2. S41 HFEA 2008: Otherwise, sperm donor not to be treated as F

Question 5

H not legal F because did not consent to sperm donation, so not under HFEA; biological F = legal F under common law

Answer 5

Leeds Teaching Hospitals v A and B

Question 6

Ukrainian surrogate M’s husband = Legal father of the child

• partner of surrogate = legal parent (presumption of marriage)

Answer 6

Re IJ (A Child)

Question 7

If natural conception, who is the legal father?

Answer 7

• Common law principles

1. General rule: Legal F = Genetic F
   • [s26 Family Law Reform Act] can be rebutted on balance of probabilities. M v F and another.
2. Re IJ (A Child): If M married, H becomes F
3. DNA testing: Ss20, 21 Family Law Reform Act 1969
   • Declaration of Parentage: S55A Family Law Act 1986

Question 8

DIY artificial insemination cases are a grey area that needs further regulation

(child conceived through sex instead of IVF)

Answer 8

M v F and H:

Peter Jackson J, obiter

Question 9

Legal F = Husband of mother at the time of conception, if marriage ended before birth by H’s death

Answer 9

Re Overbury (Deceased)

Question 10

Explain process of Declaration of Parentage.

Answer 10

1. Court may call for scientific parentage tests
   • S20(1) Family Law Reform Act 1969
2. Court may decide to make an order to declare biological F as legal F
   • S55A Family Law Act 1986
3. After receiving findings, court officer must send copy of declaration to Registrar General within 21 days
   • Rule 8.22 Family Procedure Rules 2010

Question 11

If F refuses to submit to blood test, court can see it as ‘virtually inescapable’ proof that F is biological F

(M had sex with 3 guys, tried to claim maintenance from A, A declined paternity test)

Answer 11

Re A (A Minor) (Paternity: Refusal of Blood Test)

Question 12

Results from blood test are more important than who is named on the birth certificate

Answer 12

SS for Work and Pensions v Jones

Question 13

How does a female partner in a civil partnership become a Parent of a child conceived under ART?

Answer 13

section 42 HFEA = partner automatically has right to register on birth certificate

Question 14

How does a female partner in cohabitation (aka non civil or marriage) become a parent of ART child?

Answer 14

1a) Usually sign consent forms at clinic (if lost then court is willing to grant, unless in situation like AB v CD and Z Fertility Clinic)
1b) S44 HFEA= female parenthood conditions [then fulfils s43 HFEA]
2) Gains right to register on cert
3) Put name on cert through Registrar General

Question 15

Where are the requirements for a parental order found?

Answer 15

s54 HFEA ( 1 ) - ( 8 )

Question 16

Is surrogacy allowed in the UK, and if so is it enforceable?

Answer 16

[ Surrogacy Arrangements Act 1985 ]
Commercial and advertising surrogacy is an offence (s4)
Non-profit surrogacy is not an offence, but also not enforceable

Question 17

How would a gay couple claim parenthood for a child carried by surrogacy?

Answer 17

[Both required] Parental order
[Genetic father]
• apply for parental responsibility (s4(1)(c)) (children act)
• court decides on CAR (commitment, attachment, reasoning)
• apply for child arrangement order (s8)
[Partner]
• leave of court (due to lack of other standings)
• apply for parental responsibility

Question 18

Consent forms used by clinic were not in standard form and did not purport to confer legal rights

Clinic did not help the couple make an informed decision, did not offer proper counselling about steps prior to treatment, kept inadequate records of treatment

(Z fertility clinic)

Answer 18

AB v CD

Question 19

Blood test will not be ordered by court if it will be to the detriment of the child

(blood test would disrupt stability of child’s nuclear family, where M had sole PR for years)

Answer 19

Re F (a minor) [1993]