Parentage

Question 1

Who is a mother in law

Answer 1

Gestational/surrogate

Question 2

Who is the father in law

Answer 2

Presumed partenity/bioligical testing Re H and A 2002/ HFEA 1990/08 stipulations

Question 3

How does Bainham suggest we distinguish between the three terms that incorporate legal responsibilities

Answer 3

´ A parent may have all three legal responsibilities, or only one or two: Generally, mothers have all three; it is fathers where the distinctions may arise.

Question 4

What does Leeds Hospital v A 2003 say about parentage

Answer 4

´ Parentage is the genetic connection between child and those who provided the gametes, and is required in many cases before PR is provided to a father

Question 5

How is PR defined in s3 Children Act 1989

Answer 5

provides ‘all the rights and duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.’

Question 6

What did Hale suggest are the parent types in Re G 2018

Answer 6

´ Legal parent: created by the law.
´ Genetic parent: sperm or egg created child.
´ Social parent: one who has caring responsibilities (e.g. step parents, adoptive parent, psychological parent (who is considered to be the parent in the eyes of the child)).
´ Biomedical technology, IVF, assisted reproduction, donor gametes etc, then makes the biological aspect difficult.

Question 7

What is defined as mother of child in Ampthill Peerage Case 1977

Answer 7

Lord Simon- Motherhood, altho also a legal relationship, is based on a fact being proved demonstrably by partition

Question 8

What does s33 1 of the Human Fertilisation Act 2008 say about who is a mother

Answer 8

“the woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child.”

Question 9

What does s44 1 of the HF and e a 2008 say about same sex female couples and motherhood

Answer 9

´ The same holds true in same sex female couples, and the other woman can becomes a second parent if they meet the agreed female parenthood conditions.
´ S44(1) Human Fertilisation and Embryology Act 2008.

Question 10

When can a legal mother change

Answer 10

´ This can only change if the child is adopted (could result from the adoption process or start with step-parenting) or if a parental order is subsequently made after a child is born.
´ S33 Human Fertilisation and Embryology Act 2008 applies regardless of whether the woman was in the UK at the time of placing in her the embryo or sperm and eggs.
´ No retrospective effect: only applies in relation to children carried by women as a result of the placing in them of their embryos, or sperm and egg on or after 5 April 2009.
´ Children carried before this date but after 1 August 1991 are governed by s27 Human Fertilisation and Embryology Act 1990. Before 1 August 1991 are governed by the common law.

Question 11

What does the GRA 2004 say about motherhood

Answer 11

´ Following the Gender Recognition Act 2004, the woman giving birth remains the mother notwithstanding their subsequent change of gender

Question 12

What is the fundamental change to kids born after 6/4/2009 regarding HF and E Act 2008

Answer 12

´ Fundamental change to Human Fertilisation and Embryology Act 2008: for children born on or after 6 April 2009, the female civil partner or cohabitant of the mother to be treated as the legal parent to the exclusion of any man being treated as the father.
´ See Part 2 Human Fertilisation and Embryology Act s33-47.
´ Following the enactment of the Marriage (Same Sex Couples) Act 2013 these provisions now equally apply to a mother’s female spouse.

Question 13

What does section 42 of the HFA say about giving birth

Answer 13

´ S42 Human Fertilisation and Embryology Act 2008 provides that where a woman gives birth to a child conceived as a result of donor insemination, she is the mother of the child and her female spouse or civil partner will automatically be the other parent, unless she did not consent to the mother’s treatment.

Question 14

What does s43 HFA say about same sec couples

Answer 14

´ S43 Human Fertilisation and Embryology Act 2008 applies in the case of same-sex female couples who are neither married nor civil partners. The mother’s female partner will be treated as the other parent provided:
´ A) The placement of the embryo or the sperm and eggs in the woman or her artificial insemination took place as a result of licensed treatment within the UK.
´ B) The agreed female parenthood conditions have been satisfied.
´ C) The other woman remained alive at the time of treatment.

Question 15

What does s44 HFA say about female parenthood

Answer 15

´ s44 Human Fertilisation and Embryology Act agreed female parenthood conditions
´ Mirrors agreed fatherhood conditions in s37.
´ Where are woman is to be treated as a parent either under s42 or s43 then by s45(1) no man is to be treated as the father of the child.

Question 16

How can changing the presumption of fatherhood happen, Family law reform act 1969

Answer 16

´ Court can direct testing for paternity using scientific tests.
´ If it is in the best interest of the child to know their genetic parent (Re H and A [2002]).
´ Perhaps presumed father was abroad, impotent, infertile, or had a vasectomy.
´ If such testing will cause harm then court will not it (J v C (2006)).
´ Law thus provides that science, not presumption, should determine paternity.
´ The presumption is justified on policy grounds to provide that all children of married parents have a father who has parental responsibility.

Question 17

How is parentage declared

Answer 17

´ Birth certificate is key.
´ Births, Deaths and Registration Act 1953.
´ The certificate is the evidence of parentage (s34(2)).
´ Birth must be registered (s1(1)).
´ Must be registered in 42 days (s2).
´ Where unmarried a joint request will place the unmarried father on the register (s10)
´ Unmarried mothers might not register the name of the father (e.g. rape, incest, not sure who the father is, broken relationships, relationship involved violence, malice).

Question 18

Legal father under s35 HFA

Answer 18

Woman married or civil partner of, a man at time of treatment
(1)If— (a)at the time of the placing in her of the embryo or of the sperm and eggs or of
her artificial insemination, W was a party to a marriage with a man or a civil partnership
with a man and
(b) the creation of the embryo carried by her was not brought about with the sperm of
the other party to the marriage or civil partnership
then, subject to section 38(2) to (4), the other party to the marriage or civil partnership is to be
treated as the father of the child unless it is shown that he did not consent to 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).”

Question 19

What does s37 HFA say about fatherhood conditions

Answer 19

(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 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), 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 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 to each other.

AKA

´ That all means:
´ If a woman has had reproductive treatment, in a licenced clinic and has agreed that a shall be the father of the child then he will be the legal father.
´ It is by agreement and mirrors the provisions for the female partner of a woman.

Question 20

What makes a man not the legal father under s41 HFA

Answer 20

(1) Where he is a donor whose sperm is used for assisted procreation treatment at a clinic licensed to offer such treatment and whose consent to the use of his sperm has been obtained
´ (NB this provision only applies where the donation is to a licensed clinic. All other ‘donors’ are regarded as fathers)
(2) Where his sperm is used without his written consent after his death
´ Genetic Fathers are not legal Fathers- when they are Sperm Donors through a clinic
´ If they are a friend and donate sperm, they are a legal father (M v F and H (2013)).

Question 21

What does s55A 1 of the FLA 1986 say about paternity

Answer 21

Any person may apply to a court for a declaration as to whether or nor a person named in the application is or was the parent of another person so named.
´ Stakeholders who might want to know are:
´ Child.
´ Mother.
´ Father.
´ Other individuals.
´ State.

Question 22

What are the rights of the child in parentage

Answer 22

´ Article 7 United Nations Convention on the Rights of the Child (UNCRC): the child has ‘as far as possible, the right to know and be cared for by his or her parents’.
´ Article 8(1) European Convention on Human Rights (ECHR): ‘includes a person’s physical and psychological integrity and can sometimes embrace aspects of an individual’s physical and social identity. Respect for ‘private life’ must also comprise to a certain degree the right to establish relationships with other human beings’ (Mikulic v Croatia (App no 513176/99) [2002]).

Question 23

What does Herring suggest the 4 key developments for re examining parenthood are

Answer 23

´ New reproductive technologies (e.g. artificial insemination, IVF, surrogacy, egg and embryo donation).
´ Increased rates of divorce and relationship breakdown: mean that it is now common for a child to be cared for by someone who is not genetically a parent (e.g. step-parent).
´ Psychological parent: increased in child psychology among lawyers and an acceptance that children may have a ‘psychological parent’ who is not necessarily the genetic parent.
´ What it means to be a mother or a father in our society is undergoing complex changes. Men are sometimes seen as dispensable in the reproductive process, yet many men greatly value the parental tie.

Question 24

What is psychological parenthood

Answer 24

´ Re M (Child’s Upbringing) [1996] Thorpe LJ ruled that boy should be returned to his biological parents in South Africa. Nevertheless, he recognised “this case is further complicated by the fact that this boy has two psychological parents and they are both psychological mothers.
´ Re G (Children: Contact) (2002) the court recognised “the adoptive parents are effectively the psychological parents and the only ones that C and T know.”
´ Re G (adoption: Ordinary Residence) (2003) the court observed “LA and FD are undoubtedly the girls’ psychological parents. They are, I believe, entirely devoted to the girls’ welfare and will treat them as their daughters for the remainder of their lives

Question 25

What is socially acquired parenthood

Answer 25

´ “We seem to have moved from an almost total marriage convention – sustained by fairly draconian divorce laws – to a situation where far fewer young people actually marry.”
´ (17 March 2002, col 286 Hansard).
´ 13% of women between 18 and 49 were cohabiting in 1998 (up from 8% 10 years previously).
´ If they do decide to marry it will be considerably later. Most probably only at the long delayed moment in their 30s and sometimes their 40s when they decide to start a family.
´ Even for those that do marry, divorce (without or without remarriage) is increasingly common, and often while their children are still young.
´ The trend towards cohabitation and more frequent divorce will remain.
´ Almost 30% of children experience divorced parents by the time they reach 16 years.

Question 26

What does Lord Templeman say about biological parenthood in Re KD 198

Answer 26

The best person to bring up a child is the natural parent.”

Question 27

Can kids be deemed fatherless

Answer 27

´ As a result of the Human Fertilisation and Embryology Acts 1990 and 2008, some children can be deemed fatherless.
´ For example, where a single woman becomes pregnant as a result of artificial semination by donor provided at a licensed clinic. The donor could not be the father and Acts do not provide for anyone else to be the father.