General FAQs about the new parenthood law
Most of these FAQs are written as though the reader is the woman who is to receive treatment and carry the child
- Do I have to be married or in a civil partnership for my partner to be recognised as our child’s father or second parent?
- Our child was born following an insemination/embryo transfer which took place before 6 April 2009. Can the parenthood rules be applied to us?
- We are planning to home inseminate. How will the parenthood law apply to us?
- What if the treatment with donor sperm or embryos happened at a clinic outside the UK?
- Does the father or second parent need to be the partner of the woman receiving treatment?
- How does the parenthood law affect surrogacy arrangements?
- What if a married woman (or a woman in a civil partnership) seeks treatment using donor sperm, with someone who is not her partner or husband?
Do I have to be married or in a civil partnership for my partner to be recognised as our child’s father or second parent?
You do not have to be married or in a civil partnership, but you must ensure that you and your partner provide the right consents.
For married couples, the current law states that the husband is automatically recognised as the legal father of a child born as a result of treatment and this will continue to be the case. Since 6 April 2009, the same principle will apply for lesbian civil partners, so that the partner of the woman who gives birth will automatically be recognised as the legal second parent.
However, for both civil partners and married couples using donor sperm or embryos in their treatment, if the husband or civil partner explicitly states that they do not give consent to their partner’s treatment, they will not be the father or second parent. There is a section in the consent forms that asks this question.
Find out more by reading the FAQs that best suit your situation.
Our child was born following an insemination/embryo transfer which took place before 6 April 2009. Can the parenthood rules be applied to us?
No, this is not possible.
The law only applies to treatments carried out on or after 6 April 2009. It cannot be applied retrospectively. The appropriate consents must also be signed and dated on or after 6 April 2009. These consents must be given before embryo transfer or insemination takes place.
We are planning to home inseminate. How will the parenthood law apply to us?
The HFEA recommends that people seeking to donate sperm or to use donated sperm in their treatment do so only through the UK's licensed clinics.
Read more about why this is important.
If the couple is married or in a civil partnership and sperm insemination does not take place at a licensed clinic, fatherhood or parenthood will automatically be conferred on the partner.
The parenthood law, regarding couples who are not married or in a civil partnership, only applies when treatment is carried out at a clinic licensed by the HFEA.
What if the treatment with donor sperm or embryos happened at a clinic outside the UK?
If you are not married or in a civil partnership, the insemination or embryo transfer would need to take place in the UK for the parenthood law to apply. Your partner would have to adopt the child in order to be their father or parent if treatment takes place outside the UK.
If you are married, your husband will automatically be the father of any child born as a result of your treatment, unless your husband states that he did not consent to your treatment.
Similarly, if you are in a female civil partnership your partner will automatically be the legal second parent of any child born as a result of your treatment, unless your partner states that she did not consent to your treatment.
Does the father or second parent need to be the partner of the woman receiving treatment?
No, the woman receiving treatment with donor sperm (or embryos created with donor sperm) can consent to any man or woman being the father or second parent as long as they are not “within prohibited degrees of relationship in relation to each other” as outlined in the law (HFE Act 2008). For example, a close relation such as a brother or aunt.
How does the parenthood law affect surrogacy arrangements?
The parenthood law does not change the fact that the woman who gives birth to the child is the legal mother when the child is born.
If the surrogate is married or in a civil partnership, her husband or civil partner will be the legal father or second legal parent of any child born – unless it is shown that the he/she does not consent to the treatment.
If the surrogate has a partner with whom she is not married to or in a civil partnership, the partner must have consented to being the father/second parent of any child born as a result of treatment in order to be legally recognised as such. The surrogate must have also consented to her partner being recognised as the father/second parent.
If the surrogate is single or has a partner who does not wish to be the father/second parent, the parenthood law makes it possible for the intended father/second parent to be the legal father/second parent upon birth of the child – but only where they have not provided sperm for the treatment. Both the surrogate and the intended father/second parent will need to consent to this.
As is currently the case, if the intended father has provided sperm for the treatment of the surrogate, he will need to register as a donor and therefore cannot be the father upon birth of the child. If the intended second parent has provided eggs for the treatment of the surrogate she will need to register as a donor but she can also become the legal second parent if the relevant consents are in place.
As is currently the case, the Parental Orders (Human Fertilisation and Embryology) Regulations 1994 and (in Scotland) the Parental Orders (Human Fertilisation and Embryology) (Scotland) Regulations 1994 provide that parental rights and obligations in respect of surrogacy arrangements may, provided certain conditions are met, be transferred from the birth parents to those who commissioned the surrogacy arrangement.
Since April 2010 it has been possible for civil partners and two persons who are living as partners in an enduring family relationship (as well as married couples) to apply for a Parental Order (providing that certain conditions are met).
Patients seeking a surrogacy arrangement should seek legal advice.
Read more about changes to parental orders.
What if a married woman (or a woman in a civil partnership) seeks treatment using donor sperm, with someone who is not her partner or husband?
The husband or partner will automatically be the legal parent/father of any child born as a result of this treatment, unless he/she explicitly states that he/she does not consent to the wife/partner's treatment. There is a section on the consent forms that asks husbands/partners this question.
In all cases when a married woman or a woman in a civil partnership receives treatment with donor sperm (or embryos created with donor sperm) it is good practice for clinics to seek the husband or partner's consent to this.
If the husband or partner states his/her lack of consent to the treatment then another person (eg, a new partner of the woman being treated) can be the parent/father of any child born as a result of this treatment, if the right consents are in place.
It is not possible for the new partner to also be the sperm donor e.g. the commissioning man in a surrogacy arrangement.
If you have any further questions, please speak to your clinic or contact us.
Page last updated: 06 February 2013