Human Fertilisation and Embryology (HFE) Act 2008

PART 2: PARENTHOOD IN CASES INVOLVING ASSISTED PRODUCTION

Meaning of "mother"

• 33

  Meaning of "mother"

• (1)

  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.

• (2)

  Subsection (1) does not apply to any child to the extent that the child is treated by virtue of adoption as not being the woman’s child.

• (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

  Applications of sections 35 to 47

• (1)

  Sections 35 to 47 apply, in the case of a child who is being or has been carried 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 by virtue of those sections.

Meaning of "father"

• 35

  Women 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 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 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

• 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,

  (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

  (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.

   

• 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 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.

• (2)

  A notice under subsection (1)(a), (b) or (c) must be in writing and must be signed by the person giving it.

• (3)

  A notice under subsection (1)(a), (b) or (c) by a person (“S”) who is unable to sign because of illness, injury or physical disability is to be taken to comply with the requirement of subsection (2) as to signature if it is signed at the direction of S, in the presence of S and in the presence of at least one witness who attests the signature.

• 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 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 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

• (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 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 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 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

  (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 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.

• (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 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 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 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 -

  (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 father of the child.

• (2)

  If -

  (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 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,

  (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 the man in relation to 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

  (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,

  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 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.

Cases in which woman to be other parent

• 42
  Woman in civil partnership at time of treatment
• (1)

  If at the time of the placing in her of the embryo or the sperm and eggs or of her artificial insemination, W was a party to a civil partnership, then subject to section 45(2) to (4), the other party to the civil partnership is to be treated as a parent of the child unless it is shown that she did not consent to the placing in W 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).

• 43

  Treatment provided to woman who agrees that second woman to be parent

  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 she was artificially inseminated, in the course of treatment services provided in the United Kingdom by a person to whom a licence applies,

   

  (b) at the time when the embryo or the sperm and eggs were placed in W, or W was artificially inseminated, the agreed female parenthood conditions (as set out in section 44) were met in relation to another woman, in relation to treatment provided to W under that licence, and

   

  (c) the other woman remained alive at that time,

   

  then, subject to section 45(2) to (4), the other woman is to be treated as a parent of the child.

• 44

  The agreed female parenthood conditions

• (1)

  The agreed female parenthood conditions referred to in section 43(b) are met in relation to another woman (“P”) in relation to treatment provided to W under a licence if, but only if, -

  (a) P has given the person responsible a notice stating that P consents to P being treated as a parent of any child resulting from treatment provided to W under the licence,

  (b) W has given the person responsible a notice stating that W agrees to P being so treated,

  (c) neither W nor P has, since giving notice under paragraph (a) or (b), given the person responsible notice of the withdrawal of P’s or W’s consent to P 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 W consents to a woman other than P being treated as a parent of any resulting child, or

  (ii) a notice under section 37(1)(b) stating that W consents to a man being treated as the father of any resulting child, and

  (e) W and P are not within prohibited degrees of relationship in relation 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.

• (3)

  A notice under subsection (1)(a), (b) or (c) by a person (“S”) who is unable to sign because of illness, injury or physical disability is to be taken to  comply with the requirement of subsection (2) as to signature if it is signed at the direction of S, in the presence of S and in the presence of at least one witness who attests the signature.

• 45

  Further provision relating to sections 42 and 43

• (1)

  Where a woman is treated by virtue of section 42 or 43 as a parent of the child, no man is to be treated as the father of the child.

• (2)

  In England and Wales and Northern Ireland, sections 42 and 43 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 42 and 43 do not apply in relation to any child who, by virtue of any enactment or other rule of law, is treated as the child of the parties to a marriage.

• (4)

  Sections 42 and 43 do not apply to any child to the extent that the child is treated by virtue of adoption as not being the woman’s child.

• 46

  Embryo transferred after death of civil partner or intended female parent

• (1)

  If -

  (a) the child has been carried by W as the result of the placing in her of an embryo,

  (b) the embryo was created at a time when W was a party to a civil partnership,

  (c) the other party to the civil partnership died before the placing of the embryo in the woman,

  (d) the other party to the civil partnership consented in writing (and did not withdraw the consent) -

  (i) to the placing of the embryo in W after the death of the other party, and

  (ii) to being treated for the purpose mentioned in subsection (4) as the parent of any resulting child,

  (e) 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 other party to the civil partnership to be treated for the purpose mentioned in subsection (4) as the parent of the child, and

  (f) 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 45(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 other party to the civil partnership is to be treated for the purpose mentioned in subsection (4) as a parent of the child.

• (2)

  If -

  (a) the child has been carried by W as the 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 applies,

  (c) another woman consented in writing (and did not withdraw the consent) -

  (i) to the placing of the embryo in W after the death of the other woman, and

  (ii) to being treated for the purpose mentioned in subsection (4) as the parent of any resulting child,

  (d) the other woman died before the placing of the embryo in W,

  (e) immediately before the other woman’s death, the agreed female parenthood conditions set out in section 44 were met in relation to the other woman in relation to treatment proposed to be provided to W in the United Kingdom by a person to whom a licence applies,

  (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 other woman to be treated for the purpose mentioned in subsection (4) as the parent of the child, and

  (g) 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 45(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 other woman is to be treated for the purpose mentioned in subsection (4) as a parent 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 deceased woman’s particulars to be entered as the particulars of the child’s other parent in a relevant register of births.

• (5)

  In the application of subsections (1) and (2) to Scotland, for any reference to a period of 42 days there is substituted a reference to a period of 21 days.

• 48

  Effect of sections 33 to 47

• (1)

  Where by virtue of section 33, 35, 36, 42 or 43 a person is to be treated as the mother, father or parent of a child, that person is to be treated in law as the mother, father or parent (as the case may be) of the child for all purposes.

• (2)

  Where by virtue of section 33, 38, 41, 45 or 47 a person is not to be treated as a parent of the child, that person is to be treated in law as not being a parent of the child for any purpose.

• (3)

  Where section 39(1) or 40(1) or (2) applies, the deceased man -

  (a) is to be treated in law as the father of the child for the purpose mentioned in section 39(3) or 40(4), but

  (b) is to be treated in law as not being the father of the child for any other purpose.

• (4)

  Where section 46(1) or (2) applies, the deceased woman -

  (a) is to be treated in law as a parent of the child for the purpose mentioned in section 46(4), but

  (b) is to be treated in law as not being a parent of the child for any other purpose.

• (5)

  Where any of subsections (1) to (4) has effect, references to any relationship between two people in any enactment, deed or other instrument or document (whenever passed or made) are to be read accordingly.

• (6)

  In relation to England and Wales and Northern Ireland, a child who -

  (a) has a parent by virtue of section 42, or

  (b) has a parent by virtue of section 43 who is at any time during the period beginning with the time mentioned in section 43(b) and ending with the time of the child’s birth a party to a civil partnership with the child’s mother, is the legitimate child of the child’s parents.

• (7)

  In relation to England and Wales and Northern Ireland, nothing in the provisions of section 33(1) or sections 35 to 47, read with this section -

  (a) affects the succession to any dignity or title of honour or renders any person capable of succeeding to or transmitting a right to succeed to any such dignity or title, or

  (b) affects the devolution of any property limited (expressly or not) to devolve (as nearly as the law permits) along with any dignity or title of honour.

• (8)

  In relation to Scotland -

  (a) those provisions do not apply to any title, coat of arms, honour or dignity transmissible on the death of its holder or affect the succession to any such title, coat of arms or dignity or its devolution, and

  (b) where the terms of any deed provide that any property or interest in property is to devolve along with a title, coat of arms, honour or dignity, nothing in those provisions is to prevent that property or interest from so devolving.

References to parties to marriage or civil partnership

• 49

  Meaning of references to parties to a marriage

• (1)

  The references in sections 35 to 47 to the parties to a marriage at any time there referred to -

  (a) are to the parties to a marriage subsisting at that time, unless a judicial separation was then in force, but

  (b) include the parties to a void marriage if either or both of them reasonably believed at that time that the marriage was valid; and for the purposes of those sections it is to be presumed, unless the contrary is shown, that one of them reasonably believed at that time that the marriage was valid.

• (2)

  In subsection (1)(a) “judicial separation” includes a legal separation obtained in a country outside the British Islands and recognised in the United Kingdom.

• 50

  Meaning of references to parties to a civil partnership

• (1)

  The references in sections 35 to 47 to the parties to a civil partnership at the time there referred to -

  (a) are to the parties to a civil partnership subsisting at that time, unless a separation order was then in force, but

  (b) include the parties to a void civil partnership if either or both of them reasonably believed at that time that the civil partnership was valid; and for the purposes of those sections it is to be presumed, unless the contrary is shown, that one of them reasonably believed at that time that the civil partnership was valid.

• (2)

  The reference in section 48(6)(b) to a civil partnership includes a reference to a void civil partnership if either or both of the parties reasonably believed at the time when they registered as civil partners of each other that the civil partnership was valid; and for this purpose it is to be presumed, unless the contrary is shown, that one of them reasonably believed at that time that the civil partnership was valid.

• (3)

  In subsection (1)(a), “separation order” means -

  (a) a separation order under section 37(1)(d) or 161(1)(d) of the Civil Partnership Act 2004 (c. 33),

  (b) a decree of separation under section 120(2) of that Act, or

  (c) a legal separation obtained in a country outside the United Kingdom and recognised in the United Kingdom.

Further provision about registration by virtue of section 39, 40 or 46

• 51

  Meaning of “relevant register of births”

  For the purposes of this Part a “relevant register of births”, in relation to a birth, is whichever of the following is relevant -

  (a) a register of live-births or still-births kept under the Births and Deaths Registration Act 1953 (c. 20),

  (b) a register of births or still-births kept under the Registration of Births, Deaths and Marriages (Scotland) Act 1965 (c. 49), or

  (c) a register of live-births or still-births kept under the Births and Deaths Registration (Northern Ireland) Order 1976 (S.I. 1976/1041 (N.I. 14)).

• 52

  Late election by mother with consent of Registrar General

• (1)

  The requirement under section 39(1), 40(1) or (2) or 46(1) or (2) as to the making of an election (which requires an election to be made either on or before the day on which the child was born or within the period of 42 or, as the case may be, 21 days from that day) is nevertheless to be treated as satisfied if the required election is made after the end of that period but with the consent of the Registrar General under subsection (2).

• (2)

  The Registrar General may at any time consent to the making of an election after the end of the period mentioned in subsection (1) if, on an application made to him in accordance with such requirements as he may specify, he is satisfied that there is a compelling reason for giving his consent to the making of such an election.

• (3)

  In this section “the Registrar General” means the Registrar General for England and Wales, the Registrar General of Births, Deaths and Marriages for Scotland or (as the case may be) the Registrar General for Northern Ireland.

Interpretation of references to father etc. where woman is other parent

• 53

  Interpretation of references to father etc.

• (1)

  Subsections (2) and (3) have effect, subject to subsections (4) and (6), for the interpretation of any enactment, deed or any other instrument or document (whenever passed or made).

• (2)

  Any reference (however expressed) to the father of a child who has a parent by virtue of section 42 or 43 is to be read as a reference to the woman who is a parent of the child by virtue of that section.

• (3)

  Any reference (however expressed) to evidence of paternity is, in relation to a woman who is a parent by virtue of section 42 or 43, to be read as a reference to evidence of parentage.

• (4)

  This section does not affect the interpretation of the enactments specified in subsection (5) (which make express provision for the case where a child has a parent by virtue of section 42 or 43).

• (5)

  Those enactments are -

  (a) the Legitimacy Act (Northern Ireland) 1928 (c. 5 (N.I.)),

  (b) the Schedule to the Population (Statistics) Act 1938 (c. 12),

  (c) the Births and Deaths Registration Act 1953 (c. 20),

  (d) the Registration of Births, Deaths and Marriages (Special Provisions) Act 1957 (c. 58),

  (e) Part 2 of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 (c. 49),

  (f) the Congenital Disabilities (Civil Liability) Act 1976 (c. 28),

  (g) the Legitimacy Act 1976 (c. 31),

  (h) the Births and Deaths Registration (Northern Ireland) Order 1976 (S.I. 1976/1041 (N.I. 14)),

  (i) the British Nationality Act 1981 (c. 61),

  (j) the Family Law Reform Act 1987 (c. 42),

  (k) Parts 1 and 2 of the Children Act 1989 (c. 41),

  (l) Part 1 of the Children (Scotland) Act 1995 (c. 36),

  (m) section 1 of the Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39), and

  (n) Parts 2, 3 and 14 of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)).

• (6)

  This section does not affect the interpretation of references that fall to be read in accordance with section 1(2)(a) or (b) of the Family Law Reform Act 1987 or Article 155(2)(a) or (b) of the Children (Northern Ireland) Order 1995 (references to a person whose father and mother were, or were not, married to each other at the time of the person’s birth).

• 58

  Interpretation of Part 2

• (2)

  For the purposes of this Part, two persons are within prohibited degrees of relationship if one is the other’s parent, grandparent, sister, brother, aunt oruncle; and in this subsection references to relationships -

   

  (a) are to relationships of the full blood or half blood or, in the case of an adopted person, such of those relationships as would subsist but for adoption, and

   

  (b) include the relationship of a child with his adoptive, or former adoptive, parents, but do not include any other adoptive relationships.

   

Licence conditions

• T60
  A woman must not be provided with treatment services using embryos or donated gametes unless she and any man or woman who is to be treated together with her have been given a suitable opportunity to receive proper counselling about the implications of her being provided with treatment services of that kind, and have been provided with such relevant information as is proper.
• T61
  A woman must not be provided with treatment services where there is an intended second parent unless, either before or after both have consented to the man or woman being the intended second parent, she and the intended second parent have been given a suitable opportunity to receive proper counselling about the implications of the woman being provided with treatment services and have been provided with such relevant information as is proper.
• T62

  The reference in licence conditions T60 and T61 above to the intended second parent is a reference to:

  a. any man with respect to whom the agreed fatherhood conditions in Section 37 of the Human Fertilisation and Embryology Act 2008 (“the 2008 Act”) are for the time being satisfied in relation to treatment provided to the woman mentioned in licence conditions T60 and T61, and

  b. any woman with respect to whom the agreed female parenthood conditions in Section 44 of the 2008 Act are for the time being satisfied in relation to treatment provided to the woman mentioned in licence conditions T60 and T61.

   

• T63

  In the case of treatment services using donated gametes, or embryos created using donated gametes, the person receiving treatment and any intended second parent, must be provided with information about:

  a. the importance of informing any resulting child at an early age that they were born as a result of such treatment, and

  b. suitable methods of informing such a child of that fact.

• T64

  In cases where the nominated second parent withdraws their consent to be treated as the parent of any child born to a named woman, the PR must:

  a. notify the woman in writing of the receipt of the notice from the second parent, and

  b. ensure that no treatment services are provided to the named woman until she has been notified of the second parent’s withdrawal of consent.

• T65

  If a woman withdraws her consent to her nominated second parent being treated as the legal parent, or consents to a different person being the legal parent of any child resulting from treatment, the PR must notify the original nominated second parent in writing of this.

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Legal parenthood and parental responsibility

• 6.1

  The centre should provide information to people seeking treatment about legal parenthood. This information should include who will be the child’s legal parent(s) under the HFE Act 2008 and other relevant legislation. Nationals or residents of other countries, or individuals treated with gametes obtained from nationals or residents of other countries, should be informed that the law in other countries may be different from that in the United Kingdom.

• 6.2

  The centre should explain that there is a difference in law between the legal status of ‘father’ or ‘parent’ and having ‘parental responsibility’ for a child. In any case in which people seeking treatment have doubts or concerns about legal parenthood or parental responsibility for a child born as a result of treatment services, the centre should advise them to seek their own legal advice.

Legal parenthood when the woman has a husband

• 6.3

  If a married woman is seeking treatment using donor sperm, or embryos created using donor sperm, the centre should take all practical steps to:

  (a) ascertain whether the husband consents to the treatment (taking into account the duty of confidentiality to the woman, where applicable), and

  (b) obtain a written record of the husband’s consent. If the husband does not consent, the centre should take all practical steps to obtain written evidence of this.

• 6.4

  If the centre cannot obtain a written record of the husband’s consent or refusal to consent, it should record the steps taken to establish whether he consents to the treatment in the medical records.

• 6.5

  If a married woman wishes to be treated with a new partner (with his sperm or with donor sperm or a donor embryo) and her husband does not consent to his wife’s treatment, then the woman’s new partner can be the father or parent of any child born as a result of this treatment, if the right consents are in place.

Legal parenthood when the woman has a civil partner

• 6.6

  If a woman in a civil partnership is seeking treatment using donor sperm, or embryos created using donor sperm, the centre should take all practical steps to:

  (a) ascertain whether the civil partner consents to the treatment (taking into account the duty of confidentiality to the woman seeking treatment, where applicable), and

  (b) obtain a written record of the civil partner’s consent – if the civil partner does not consent, the centre should take all practical steps to obtain written evidence of this.

• 6.7

  If the centre cannot obtain a written record of the civil partner’s consent or refusal to consent, it should record the steps taken to establish whether the civil partner consents to the treatment in the medical records.

Legal parenthood: male partner

Legal parenthood: female partner

Parenthood after death of a man providing sperm

Parenthood after death of a partner who has not provided sperm

Legal parenthood: surrogacy

General procedures for obtaining consent

• 6.8

  The centre should establish documented procedures to obtain written informed consent. The centre should retain the signed consent forms and ensure that a copy is available for those who have given consent.

• 6.9

  When anyone gives, withdraws or varies consent, the centre should check their identity against identifying information held in the medical records. If there is doubt about a patient’s identity, the centre should take steps to verify this, including examining photo identification such as a photocard driving licence or passport. The centre should record this evidence in the medical records.

• 6.10
  The centre should ensure that there is a written record in the medical records that information has been provided to the person giving consent in each case.
• 6.11

  The centre should ensure that consent is:

     
  (a) given voluntarily

  (b) given by a person who has the capacity to do so, and

  (c) taken by a person authorised by the centre to do so.

• 6.12

  The centre should ensure that any person giving consent declares that:

  (a) they were given enough information to understand the nature, purpose and implications of receiving treatment (or their partner receiving treatment) following consent

  (b) they were given a suitable opportunity to receive proper counselling about the implications of receiving treatment (or their partner receiving treatment) following consent

  (c) they were given information about the procedure for varying or withdrawing consent, and

  (d) the information they have given in writing is correct and complete.

• 6.13

  When obtaining consent to register the partner as the parent after their death, the centre should ensure that the partner consents to their details and identifying information about treatment being disclosed to the Registrar General.

People not to be treated as parents

Information provision and counselling

Notification of withdrawl of consent to parenthood

• 6.14

  The PR should ensure that the written notification they issue explains and refers to the relevant parts of the legislation regarding legal parenthood and withdrawal of consent.

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