Critically examine the legal definition of parenthood
...." Until the advent of in vitro fertilisation, there could be no doubt that the woman giving birth must in law be the child’s mother. “Motherhood, although also a legal relationship, is based on a fact, being proved demonstrably by parturition: mater est quam gestatio demonstrat”. There is no doubt that, where the woman has conceived by artificial insemination or by in vitro fertilisation of her ovum, she is the legal mother. The difficulty arises where the person giving birth is not the child’s genetic mother but is the carrying mother as a result of an egg or embryo donation. As Scott Baker J said in Re W (Minors) (Surrogacy), ‘The advent of IVF presented the law with a dilemma: whom should the law regard as the mother? Hitherto, the position at common law has still to be determined. The matter was raised in Re W (Minors) (Surrogacy) , but left open upon an undertaking by the commissioning genetic parents that they would apply for a ‘parental order’ under s 30 of the Human Fertilisation and Embryology Act 1990 as soon as the provision was implemented. However, s.27 of the HFEA 1990 provides: “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”. Where this provision applies, then in all cases the woman giving birth and no other woman will, unless the child is subsequently adopted or a parental order is subsequently made, be treated as the legal mother regardless of genetic connection. Section 27, nevertheless, doesn’t have retrospective effect . On the other hand, the section applies regardless of 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. The position regarding who is the legal father is more complicated than that of the mother, for while in general the genetic father is regarded as the legal father. S 28 of the HFEA 1990 details a child’s legal father - if a couple are married and at the time the embryo is implanted the husband consents he will be the child’s legal father irrespective of whether the sperm is his or from a donor. For an unmarried couple the criteria for legal paternity is that the couple is undergoing treatment together. So if the criteria under s28(2) & (3) are met the legal father and the name registered on the birth certificate (subject to what is said out below) is the husband/partner. Section 28 (6) provides that where a man has consented to the use of his sperm for the treatment of others (a donor), and that sperm is used for that purpose, that man is not to be treated as the legal father of any resulting child. Section 28 (6) (b) of the 1990 Act states that where the sperm of a man (or any embryo created from that sperm) is used after the man's death, he is not to be regarded as the legal father of any resulting child. However, following a declaration on an application that the section was incompatible with the Human Rights Act 1998 (HRA 1998) new legislation has been passed – the Human Fertilisation Embryology (Deceased Fathers) Act 2003 – and allows fathers to be so registered. The legislation therefore sometimes creates surprising outcomes and there has been some judicial criticism of it, as can be seen by two recent cases. In Re D, an unmarried couple received IVF treatment together within the meaning of S28 (3) although subsequently separated and the woman continued with the treatment without telling the clinic and became pregnant. Following the birth the man made applications for parental responsibility and contact. At the court of first instance the mother, father and court (without really considering the issue) accepted that by virtue of Section 28 (3) the man was the legal father even though there was no biological relationship. The court made an order for indirect contact and adjourned the parental responsibility application. The father appealed. The father subsequently made an application for a declaration of parentage relying upon s 28 (3). The Court of Appeal properly considered the meaning of s 28 (3) for the first time in the case and found that it’s natural and ordinary meaning should be adopted. Therefore at the time of the successful implantation of the embryo into the mother’s uterus the parties were not being treated together and the original order was set aside. An even more complex case was Leeds Teaching Hospitals NHS Trust v (1)Mr A (2) Mrs A & 5 ORS. This concerned the two married couples receiving IVF treatment - a syringe needle was not properly cleaned resulting in sperm from the first father being used to fertilise an egg from the second mother. The resultant embryo was successfully implanted in the second mother who gave birth to twins. The mistake may not have been discovered if the first father had not been black and the second couple both white and the children therefore mixed race. Both couples agreed that the twins would be brought up by the second couple however their parentage under the HFEA 1990 was confused - their biological father was obviously the first husband however their legal father uncertain - under s28(2) the second husband would have to have consented to the treatment to be the father. The second husband then argued that s 28 (3) could apply on the basis that he and his wife were receiving treatment together, however, the court held that the “mistake” vitiated the concept of “treatment together”. Accordingly, the court felt that, to recognise what had been agreed, a Residence Order should be made in favour of the second couple and for them to later apply to adopt the twins – this made the second husband their legal father although meant the mother lost her right to be their “natural” mother. In Re R, a man (M) and a woman (W) who had undergone fertility treatment together (using donor sperm) at an assisted conception unit, during the course of their relationship. The relationship subsequently broke down and they separated. W continued to undergo fertility treatment using frozen embryos. That continued treatment led to the birth of R. The High Court decided to confer legal paternity of R upon M. W successfully challenged that decision in the Court of Appeal. The Court of Appeal ruled that as the couple were separated at the time of successful embryo transplantation, section 28(3) of the 1990 Act would not apply to confer paternity rights. In her judgment, Lady Jus...