my bun, your oven: an introduction to surrogacy law in the ... · flr 846 (a.k.a. the baby cotton...

My Bun, Your Oven: An Introduction to

Surrogacy Law in the United Kingdom

Bianca Jackson

Coram Chambers

30.04.14

About the presenters

Bianca Jackson

Prior to commencing pupillage at Coram Chambers, Bianca completed her BA Honours in Law at the

University of Cambridge and a LLM at City Law School, specializing in surrogacy law. She

volunteered for a number of years with the Cambridge Rape Crisis Centre and the National Centre

for Domestic Violence, as well as The Women’s Institute, a gender think tank in Hong Kong. More

recently, Bianca was a legal intern at the Women’s Initiatives for Gender Justice at the International

Criminal Court in The Hague, where she helped to draft appeals in the reparations proceedings

against Thomas Lubanga and monitored sexual violence and related ICC cases in the Cote D’Ivoire,

the Central African Republic, and the DRC.

Bianca is interested in all aspects of family law and her qualifications and practical experience make

her ideally placed to undertake work in all areas of family law, which she is keen to do. She also

holds a BA (Reed College, USA), MA (Sussex) and D.Phil (Oxford) in English literature.

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My Bun, Your Oven

An Introduction to Surrogacy Law in the UK Bianca Jackson

A Brief History of Surrogacy Law

• A v C [1985] FLR 445

(heard in 1978)

• Warnock Report [1984]

• Re C (A Minor) (Wardship: Surrogacy) [1985] FLR 846 (a.k.a. the Baby Cotton Case)

• Re W (Minors) (Surrogacy) [1991] 1 FLR 385

• Brazier Report [1998]

Key Statutes and Regulations

• Surrogacy Arrangements Act 1985

• Human Fertilisation and Embryology Act 1990

• Human Fertilisation and Embryology Act 2008

• Human Fertilisation and Embryology (Parental Orders) Regulations 2010

• Family Procedure Rules 2010

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Surrogacy Arrangements Act 1985

Question: Who is a surrogate mother?

Answer: s.1(2)

What is a surrogacy arrangement?

Answer: s.1(3)

Surrogacy Arrangements Act 1985

Commissioning Parents

• Surrogacy arrangements are not illegal if they are altruistic.

• Commercial arrangements for surrogacy are prohibited [s.2(1)].

• However, the commissioning parents and/or the surrogate mother are not guilty of an offence if payment beyond reasonable expenses is made [s.2(2)].

• It is a criminal offence for a person to advertise that they are looking for a surrogate mother or are willing to act as a surrogate mother [s.3(1)(a)] and the penalty for doing so is a fine and/or up to three months imprisonment [s.4(1)].

Professional Bodies • It is a criminal offence for any third

party (whether an individual or a professional body) to broker surrogacy agreements between a surrogate mother and commissioning parents for payment [s.2]> this includes solicitors!

• It is also a criminal offence for third parties to advertise their willingness to broker a surrogacy arrangement [s.3(1)(a)], as well as for newspapers or periodicals to carry said advertisements [s.3(2)].

• The penalty for any of the above offences is a fine and/or up to three months imprisonment [s.4(1)].

Human Fertilisation and Embryology Act 1990

s.36: Inserted s.1A into the Surrogacy Arrangements Act 1985, namely:

SURROGACY ARRANGEMENTS ARE UNENFORCEABLE!!

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Who are my parents?


Legal Definitions of Parentage (1)

The legal mother of a surrogate child is the woman who carries the child, regardless of whether she is genetically related to that child (s.33). This is an irrebuttable presumption.



If the surrogate mother is married at the time of her treatment, the legal father of the surrogate child is the person married to the legal mother at the time of treatment, unless he did not consent to the treatment (s.35).

https://www.google.co.uk/imgres?imgurl=http://www.gongnews.net/wp-content/uploads/2013/12/surrogacy-1.jpg&imgrefurl=http://www.gongnews.net/surrogacy-alternative-to-childlessness-should-be-encouraged-in-nigeria/&docid=TO8k6-Y4emj1VM&tbnid=8NFsDfCp7sGDtM:&w=320&h=319&ei=wRBIU_DHFsPx0gWaxoGACg&ved=0CAIQxiAwAA&iact=c

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Likewise, if the surrogate mother is in a civil partnership at the time of her treatment, her civil partner will be the legal second parent of the child, unless she did not consent to the treatment (s.42).


Legal Definitions of Parentage (4) Where the surrogate mother is unmarried and not in a civil partnership, the legal father/second parent can be designated in two ways: If no one chooses otherwise, the commissioning

father will be regarded as the legal father of the child so long as he is also the biological father.

If treatment takes place at a licensed fertility clinic, the surrogate mother can appoint the commissioning mother (s.43) or a non-biological father as the second parent (s.36).

Human Fertilisation and Embryology Act 2008 Legal Definitions of Parentage (5)

Sperm donors are not regarded as legal fathers (s.41).

http://www.google.co.uk/url?sa=i&rct=j&q=&esrc=s&source=images&cd=&docid=LOv4MoYvNvVlAM&tbnid=OUc6WLJ1B4i34M:&ved=0CAUQjRw&url=http://www.tressugar.com/date/2011/9/16&ei=rHZKU7bwHYO50QWWr4C4CQ&psig=AFQjCNHLlwnU0n7sir-3DlF5-2bgHTHVfQ&ust=1397475252657470

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It is important to note that all of the aforementioned definitions apply whether the treatment and surrogacy arrangement took place in the United Kingdom or elsewhere.

Human Fertilisation Act 2008 Transfer of Parental Responsibility and Legal Parenthood (1)

In order to obtain parental responsibility and legal parenthood for the child born out of a surrogacy arrangement and extinguish the status of the surrogate mother, the commissioning parents must apply for a parental order [HFEA 2008, s.54(1)].


To apply for a parental order, the commissioning parents must be: • Over the age of eighteen; • Unrelated; and • Either married, in a civil partnership, or two persons living

as partners in an enduring family relationship s.54(2). At least one of the commissioning parents must have provided genetic material for the child in order for the couple to obtain parental responsibility and legal parentage s.54(1)(b).

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The application for a parental order must be made during the six month period after the child’s birth s.54(3). However, it cannot be made in the six weeks following the child’s birth as the agreement of the legal mother is viewed as ineffective in those six weeks s.54(7].

When the commissioning parents make the application for parental responsibility, the child must be living with them and either one or both of the commissioning parents must be domiciled in the United Kingdom s.54(4).


When granting an application for a parental order, the court must be satisfied that no money or benefits were exchanged between any of the parties. However (and somewhat paradoxically), the court has the discretion to authorise payments and benefits between the parties s.54(8).


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Human Fertilisation and Embryology (Parental Orders) Regulations 2010

The welfare of the child is the paramount

consideration of the Court when considering an application for a parental order.

Family Procedure Rules 2010

Applying for a parental order: 1. The Applicants must be: a married couple, a

couple in a civil partnership, or two persons living in an enduring family relationship who are not related [13.3(1)].

2. The Respondents to the application are the surrogate mother, any second parent, anyone with whom there is a provision for contact, and/or any other person or body with parental responsibility at the time of the application [13.3(2)].


3. For the purpose of international surrogacy arrangements, notice of proceedings must also be given to any person with parental responsibility for the child who lives outside of the United Kingdom [13.4].

4. Applications are made using the C51 Application for a Parental Order.

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5. When an application has been

made, the court will set a date for

hearing the application and appoint

a parental order reporter [13.5].

6. The parental order reporter investigates the matters set out in s.54 and advises the court on whether there is any reason why an application should be refused [16.35].


7. Before the first hearing, the applicants must serve the respondents with the application, a form for acknowledgement, and a notice of proceedings [13.6(1)(a-c)]. All of the respondents must subsequently file an acknowledgement of service and serve it on the other parties within seven days [13.7].

8. Where the surrogate mother cannot be found or is incapable of agreement, the applicants must state in the application that agreement is not required and provide a statement of facts setting out why [13.10(1-2)].


9. At the final hearing, the applicants must provide the court with a full certified copy of an entry in the registers of live-births [13.15(2)(a)].

10. A parental order takes

effect from the day it is

made [13.20(1)].

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I) Commercial Surrogacy Arrangements

Ex: Re W [2013] EWHC 3570 (Fam)

- A UK couple entered into a surrogacy contract with a surrogate in Nevada using a surrogacy company based in California.

- The surrogacy company was paid $22,000 for administrative and other services.

- The surrogate was paid $38,000, plus a monthly allowance, housekeeping, counseling, and some “one off" voluntary gifts.

- The commissioning couple returned to the UK with the triplets and applied for a parental order.

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What’s the problem?

Although the commissioning parents and/or the surrogate mother are not guilty of an offence if payment is made [SAA 1985, s.2(2)], the court will not grant a parental order unless it is satisfied that the surrogacy arrangement was altruistic [HFEA 2008, s.54(8)].

This stipulation applies even if the surrogacy arrangement took place in a country or state where commercial surrogacy is legal [HFEA 2008, 54(10)].

The Approach of the Court

Section 54(8) of the HFEA: the court has the discretion to authorise payments retroactively where it is in the best interests of the child to do.

The payments must not be so disproportionate to expenses reasonably incurred to be an affront to public policy and the commissioning parents must have acted in good faith.

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II) Cross-Border Surrogacy Arrangements

Ex: Re X & Y (Foreign Surrogacy)[2008] EWHC 3030 (Fam)

- H and W contracted with a Ukrainian surrogate and her husband.

- In exchange for certain payments, the surrogate mother would be implanted with embryos conceived with donor eggs and fertilised by the English husband's sperm.

- The surrogate mother gave birth to twins, and the Ukrainian surrogate parents handed the children to the English husband and wife as agreed.

What’s the problem?

Regardless of whether the surrogacy arrangement took place in the United Kingdom or elsewhere, the definitions of parenthood under the HFEA 2008 apply [see in particular s.33(3) and s.35(2)].

This lack of recognition of foreign surrogacy laws can raise difficulties when the commissioning parents attempt to return to the UK with the child, which they must do in order to apply for a parental order [HFEA 2008, s.54(4)].

http://www.thegatewaypundit.com/wp-content/uploads/2013/10/India-surrogacy.jpg

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Most countries predicate a child’s nationality on at least one of his/her parents having that nationality. If the country where the surrogacy arrangement took place recognises the commissioning parents as the legal parents, it will not bestow the surrogate parents’ nationality on the child.

Simultaneously, if the UK does not identify the commissioning parents as the legal parents, the child cannot obtain British citizenship and, by

extension, entry clearance into the United Kingdom.

Unless granted special leave to enter by the Home Secretary, a child could therefore be left “stateless” and a “legal orphan”,

even if that child is the biological offspring of one or both of the commissioning parents.

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III) Consent

Ex: Re D and L (Children)(Surrogacy Parental

Order) [2012] EWHC 2631 (Fam)

- Two men in a civil partnership contracted with a surrogacy clinic in India.

- The policy of the clinic was that the applicants would not be permitted to meet the surrogate mother.

- The applicants selected an anonymous egg donor and agreed that the first applicant would be the genetic father of the children.

- The surrogate gave birth to twins, which were handed over to the couple.

- The surrogate mother could not be contacted subsequently.

What’s the Problem?

• Both the surrogate mother and father or second parent (if any) must give free, informed, and unconditional consent to the making of the parental order [HFEA 2008, s.54(6)].

• Consent must be given within six months of the child’s birth [HFEA 2008, s.54(3)].

• However, the surrogate mother is not considered capable of giving consent for the first six weeks after the child is born [HFEA 2008, s.54(7)].

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The Approach of the Court

As the child’s welfare is the “paramount consideration” of the court, judges have been willing to dispense with consent if it is in the best interests of the child to make a parental order so long as all reasonable steps have been taken to locate the surrogate mother (or her husband or second parent) and have failed.

III) Enforcement

Until the consent of the surrogate mother and her husband or partner (if any) is enshrined in a parental order, the surrogacy agreement is an informal arrangement.

What’s the Problem?

No Legal Recourse

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IV) Single Commissioning Parents

Single commissioning parents cannot obtain legal parenthood under s.54 for a child born as a result of a surrogacy arrangement, even if the child is genetically their own.

The consequences of s.54 of the HFEA 2008 for single parents differ slightly dependent on the gender of the commissioning

parent and the relationship status of the surrogate mother.

Where the surrogate mother is married or in a civil partnership, section 35 or section 42 of the HFEA 2008 apply: her husband or partner will be the de facto father or second parent of the child if he or she consented to the surrogacy treatment.

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• If the surrogate mother is not married or in a civil

partnership, a single commissioning father can be treated as the legal father of the child under s.36 of the HFEA 2008 provided that the agreed fatherhood conditions apply, namely that the surrogate mother and the commissioning father give their written consent [HFEA, s.37].

• Likewise, the commissioning mother can be treated as the second parent under s.43 of the HFEA 2008 if the surrogate mother and the commissioning mother give their written consent [HFEA 2008, s.44].

A commissioning single woman will never be regarded as the legal mother of the child since, as mentioned earlier, the legal mother in the United Kingdom is always the woman who carries the child [HFEA, s.33].

Questions?

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Changes to legislation: There are outstanding changes not yet made by the legislation.gov.ukeditorial team to Surrogacy Arrangements Act 1985. Any changes that have already been made by the

team appear in the content and are referenced with annotations. (See end of Document for details)

Surrogacy Arrangements Act 19851985 CHAPTER 49

An Act to regulate certain activities in connection with arrangements made with a viewto women carrying children as surrogate mothers. [16th July 1985]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of theLords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by theauthority of the same, as follows:—

Annotations:

Commencement InformationI1 Act wholly in force at Royal Assent

1 Meaning of “surrogate mother”, “surrogacy arrangement” and other terms. E+W+N.I.

(1) The following provisions shall have effect for the interpretation of this Act.

(2) “Surrogate mother” means a woman who carries a child in pursuance of anarrangement—

(a) made before she began to carry the child, and(b) made with a view to any child carried in pursuance of it being handed over

to, and [F1parental responsibility being met] (so far as practicable) by, anotherperson or other persons.

(3) An arrangement is a surrogacy arrangement if, were a woman to whom thearrangement relates to carry a child in pursuance of it, she would be a surrogate mother.

(4) In determining whether an arrangement is made with such a view as is mentionedin subsection (2) above regard may be had to the circumstances as a whole (and, inparticular, where there is a promise or understanding that any payment will or maybe made to the woman or for her benefit in respect of the carrying of any child inpursuance of the arrangement, to that promise or understanding).

2 Surrogacy Arrangements Act 1985 (c. 49)Document Generated: 2014-04-02



(5) An arrangement may be regarded as made with such a view though subject toconditions relating to the handing over of any child.

(6) A woman who carries a child is to be treated for the purposes of subsection (2)(a)above as beginning to carry it at the time of the insemination [F2or of the placing inher of an embryo, of an egg in the process of fertilisation or of sperm and eggs, as thecase may be,] that results in her carrying the child.

(7) “Body of persons” means a body of persons corporate or unincorporate.

(8) “Payment” means payment in money or money’s worth.

(9) This Act applies to arrangements whether or not they are lawful . . . F3.

Annotations:

Extent InformationE1 This version extends to England and Wales and Northern Ireland only; a separate version has been

created for Scotland only

Amendments (Textual)F1 Words in s. 1(2)(b) substituted (E.W.) (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108(5),

Sch. 13 para. 56 (with Sch. 14 para. 1(1)); S.I. 1991/828, art. 3(2) and substituted (N.I.) (4.11.1996)by S.I. 1995/755 (N.I. 2), art. 185(1), Sch. 9 para. 119; S.R. 1996/297, art. 2(2)

F2 Words substituted by Human Fertilisation and Embryology Act 1990 (c. 37, SIF 83:1), s. 36(2)(a)F3 Words repealed by Human Fertilisation and Embryology Act 1990 (c. 37, SIF 83:1), s. 36(2)(b)

1 Meaning of “surrogate mother”, “surrogacy arrangement” and other terms. S

(1) The following provisions shall have effect for the interpretation of this Act.

(2) “Surrogate mother” means a woman who carries a child in pursuance of anarrangement—

(a) made before she began to carry the child, and(b) made with a view to any child carried in pursuance of it being handed over

to, and the parental rights being exercised (so far as practicable) by, anotherperson or other persons.

(3) An arrangement is a surrogacy arrangement if, were a woman to whom thearrangement relates to carry a child in pursuance of it, she would be a surrogate mother.

(4) In determining whether an arrangement is made with such a view as is mentionedin subsection (2) above regard may be had to the circumstances as a whole (and, inparticular, where there is a promise or understanding that any payment will or maybe made to the woman or for her benefit in respect of the carrying of any child inpursuance of the arrangement, to that promise or understanding).

(5) An arrangement may be regarded as made with such a view though subject toconditions relating to the handing over of any child.

(6) A woman who carries a child is to be treated for the purposes of subsection (2)(a)above as beginning to carry it at the time of the insemination [F7or of the placing inher of an embryo, of an egg in the process of fertilisation or of sperm and eggs, as thecase may be,] that results in her carrying the child.

http://www.legislation.gov.uk/id/ukpga/1985/49/section/1/2/b

http://www.legislation.gov.uk/id/ukpga/1989/41

http://www.legislation.gov.uk/id/ukpga/1989/41/section/108/5

http://www.legislation.gov.uk/id/ukpga/1989/41/schedule/13/paragraph/56

http://www.legislation.gov.uk/id/ukpga/1989/41/schedule/14/paragraph/1/1

http://www.legislation.gov.uk/id/uksi/1991/828

http://www.legislation.gov.uk/id/uksi/1991/828/article/3/2

http://www.legislation.gov.uk/id/nisi/1995/755

http://www.legislation.gov.uk/id/nisi/1995/755/article/185/1

http://www.legislation.gov.uk/id/nisi/1995/755/schedule/9/paragraph/119

http://www.legislation.gov.uk/id/nisr/1996/297

http://www.legislation.gov.uk/id/nisr/1996/297/article/2/2


http://www.legislation.gov.uk/id/ukpga/1990/37/section/36/2/a



Surrogacy Arrangements Act 1985 (c. 49)Document Generated: 2014-04-02

3



(7) “Body of persons” means a body of persons corporate or unincorporate.

(8) “Payment” means payment in money or money’s worth.

(9) This Act applies to arrangements whether or not they are lawful . . . F8.

Annotations:

Extent InformationE2 This version extends to Scotland only; a separate version has been created for England and Wales and

Northern Ireland only

Amendments (Textual)F7 Words substituted by Human Fertilisation and Embryology Act 1990 (c. 37, SIF 83:1), s. 36(2)(a)F8 Words repealed by Human Fertilisation and Embryology Act 1990 (c. 37, SIF 83:1), s. 36(2)(b)

[F41A Surrogacy arrangements unenforceable.

Annotations:

Amendments (Textual)F4 S. 1A inserted by Human Fertilisation and Embryology Act 1990 (c. 37, SIF 83:1), s. 36(1)

No surrogacy arrangement is enforceable by or against any of the persons making it.]

2 Negotiating surrogacy arrangements on a commercial basis, etc.

(1) No person shall on a commercial basis do any of the following acts in the UnitedKingdom, that is—

(a) initiate or take part in any negotiations with a view to the making of asurrogacy arrangement,

(b) offer or agree to negotiate the making of a surrogacy arrangement, or(c) compile any information with a view to its use in making, or negotiating the

making of, surrogacy arrangements;and no person shall in the United Kingdom knowingly cause another to do any of thoseacts on a commercial basis.

(2) A person who contravenes subsection (1) above is guilty of an offence; but it is nota contravention of that subsection—

(a) for a woman, with a view to becoming a surrogate mother herself, to do anyact mentioned in that subsection or to cause such an act to be done, or

(b) for any person, with a view to a surrogate mother carrying a child for him, todo such an act or to cause such an act to be done.

(3) For the purposes of this section, a person does an act on a commercial basis (subjectto subsection (4) below) if—

(a) any payment is at any time received by himself or another in respect of it, or(b) he does it with a view to any payment being received by himself or another in

respect of making, or negotiating or facilitating the making of, any surrogacyarrangement.





http://www.legislation.gov.uk/id/ukpga/1985/49/section/1A






In this subsection “payment” does not include payment to or for the benefit of asurrogate mother or prospective surrogate mother.

(4) In proceedings against a person for an offence under subsection (1) above, he is not tobe treated as doing an act on a commercial basis by reason of any payment receivedby another in respect of the act if it is proved that—

(a) in a case where the payment was received before he did the act, he did not dothe act knowing or having reasonable cause to suspect that any payment hadbeen received in respect of the act; and

(b) in any other case, he did not do the act with a view to any payment beingreceived in respect of it.

(5) Where—(a) a person acting on behalf of a body of persons takes any part in negotiating

or facilitating the making of a surrogacy arrangement in the United Kingdom,and

(b) negotiating or facilitating the making of surrogacy arrangements is an activityof the body,

then, if the body at any time receives any payment made by or on behalf of—(i) a woman who carries a child in pursuance of the arrangement,

(ii) the person or persons for whom she carries it, or(iii) any person connected with the woman or with that person or those persons,the body is guilty of an offence.

For the purposes of this subsection, a payment received by a person connected with abody is to be treated as received by the body.

(6) In proceedings against a body for an offence under subsection (5) above, it is a defenceto prove that the payment concerned was not made in respect of the arrangementmentioned in paragraph (a) of that subsection.

(7) A person who in the United Kingdom takes part in the management or control—(a) of any body of persons, or(b) of any of the activities of any body of persons,

is guilty of an offence if the activity described in subsection (8) below is an activityof the body concerned.

(8) The activity referred to in subsection (7) above is negotiating or facilitating the makingof surrogacy arrangements in the United Kingdom, being—

(a) arrangements the making of which is negotiated or facilitated on a commercialbasis, or

(b) arrangements in the case of which payments are received (or treated forthe purposes of subsection (5) above as received) by the body concerned incontravention of subsection (5) above.

(9) In proceedings against a person for an offence under subsection (7) above, it is adefence to prove that he neither knew nor had reasonable cause to suspect that theactivity described in subsection (8) above was an activity of the body concerned; andfor the purposes of such proceedings any arrangement falling within subsection (8)(b)above shall be disregarded if it is proved that the payment concerned was not madein respect of the arrangement.


5



3 Advertisements about surrogacy.

(1) This section applies to any advertisement containing an indication (howeverexpressed)—

(a) that any person is or may be willing to enter into a surrogacy arrangement orto negotiate or facilitate the making of a surrogacy arrangement, or

(b) that any person is looking for a woman willing to become a surrogate motheror for persons wanting a woman to carry a child as a surrogate mother.

(2) Where a newspaper or periodical containing an advertisement to which this sectionapplies is published in the United Kingdom, any proprietor, editor or publisher of thenewspaper or periodical is guilty of an offence.

(3) Where an advertisement to which this section applies is conveyed by means of atelecommunication system so as to be seen or heard (or both) in the United Kingdom,any person who in the United Kingdom causes it to be so conveyed knowing it tocontain such an indication as is mentioned in subsection (1) above is guilty of anoffence.

(4) A person who publishes or causes to be published in the United Kingdom anadvertisement to which this section applies (not being an advertisement contained ina newspaper or periodical or conveyed by means of a telecommunication system) isguilty of an offence.

(5) A person who distributes or causes to be distributed in the United Kingdom anadvertisement to which this section applies (not being an advertisement contained ina newspaper or periodical published outside the United Kingdom or an advertisementconveyed by means of a telecommunication system) knowing it to contain such anindication as is mentioned in subsection (1) above is guilty of an offence.

(6) In this section “telecommunications system” has the same meaning as in theM1Telecommunications Act 1984.

Annotations:

Marginal CitationsM1 1984 c. 12.

4 Offences.

(1) A person guilty of an offence under this Act shall be liable on summary conviction—(a) in the case of an offence under section 2 to a fine not exceeding level 5 on the

standard scale or to imprisonment for a term not exceeding 3 months or both,(b) in the case of an offence under section 3 to a fine not exceeding level 5 on

the standard scale.F5. . .

(2) No proceedings for an offence under this Act shall be instituted—(a) in England and Wales, except by or with the consent of the Director of Public

Prosecutions; and(b) in Northern Ireland, except by or with the consent of the Director of Public

Prosecutions for Northern Ireland.





(3) Where an offence under this Act committed by a body corporate is proved to havebeen committed with the consent or connivance of, or to be attributable to any neglecton the part of, any director, manager, secretary or other similar officer of the bodycorporate or any person who was purporting to act in any such capacity, he as well asthe body corporate is guilty of the offence and is liable to be proceeded against andpunished accordingly.

(4) Where the affairs of a body corporate are managed by its members, subsection (3)above shall apply in relation to the acts and defaults of a member in connection withhis functions of management as if he were a director of the body corporate.

(5) In any proceedings for an offence under section 2 of this Act, proof of things done orof words written, spoken or published (whether or not in the presence of any party tothe proceedings) by any person taking part in the management or control of a bodyof persons or of any of the body, or by a person doing any of the acts mentioned insubsection (1)(a) to (c) of that section on behalf of the body, shall be admissible asevidence of the activities of the body.

(6) In relation to an offence under this Act, section 127(1) of the Magistrates’ CourtsAct 1980 (information must be laid within six months of commission of offence),[F6section 136(1) of the Criminal Procedure (Scotland) Act 1995](proceedings must becommenced within that time) and Article 19(1) of the M2Magistrates’ Courts (NorthernIreland) Order 1981 (complaint must be made within that time) shall have effect as iffor the reference to six months there were substituted a reference to two years.

Annotations:

Amendments (Textual)F5 Words in s. 4(1) repealed (5.11.1993) by 1993 c. 50, s. 1(1), Sch. 1 Pt. XIVF6 Words in s. 4(6) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 57

Marginal CitationsM2 S.I. 1981/1675 (N.I. 26).

5 Short title and extent.

(1) This Act may be cited as the Surrogacy Arrangements Act 1985.

(2) This Act extends to Northern Ireland.




http://www.legislation.gov.uk/id/ukpga/1993/50/schedule/1/part/XIV



http://www.legislation.gov.uk/id/ukpga/1995/40/section/5



http://www.legislation.gov.uk/id/nisi/1981/1675


7

Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial team to SurrogacyArrangements Act 1985. Any changes that have already been made by the team appear in thecontent and are referenced with annotations.

Changes and effects yet to be applied to :– s. 1(7A) inserted by 2008 c. 22 s. 59(2)– s. 2(1)(a) words repealed by 2008 c. 22 s. 59(3)(a) Sch. 8 Pt. 1– s. 2(1)(aa) inserted by 2008 c. 22 s. 59(3)(b)– s. 2(5A) inserted by 2008 c. 22 s. 59(5)– s. 2(8A)(8B) inserted by 2008 c. 22 s. 59(6)– s. 3 text amended by 2003 c. 21 Sch. 17 para. 77– s. 3(1A) inserted by 2008 c. 22 s. 59(7)– s. 3(6) repealed by 2003 c. 21 Sch. 19(1)– s. 4(1)(a) repealed by 2003 c. 44 Sch. 37 Pt. 9– s. 4(1)(b) words repealed by 2003 c. 44 Sch. 37 Pt. 9

Changes and effects yet to be applied to the whole Act associated Parts and Chapters:Whole provisions yet to be inserted into this Act (including any effects on thoseprovisions):– s. 2(2A)-(2C) inserted by 2008 c. 22 s. 59(4)

Commencement Orders yet to be applied to the Surrogacy Arrangements Act 1985Commencement Orders bringing legislation that affects this Act into force:– S.I. 2003/1900 art. 2 Sch. 1 2 commences (2003 c. 21)– S.I. 2003/3142 art. 2-4 Sch. 1 2 commences (2003 c. 21)– S.I. 2009/2232 art. 2 commences (2008 c. 22)





http://www.legislation.gov.uk/id/ukpga/2008/22/schedule/8

http://www.legislation.gov.uk/id/ukpga/2008/22/schedule/8/part/1













http://www.legislation.gov.uk/id/ukpga/2003/21/schedule/19/1










http://www.legislation.gov.uk/id/uksi/2003/1900/article/2

http://www.legislation.gov.uk/id/uksi/2003/1900/schedule/1












Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorialteam to Human Fertilisation and Embryology Act 1990. Any changes that have already been made bythe team appear in the content and are referenced with annotations. (See end of Document for details)

Human Fertilisation andEmbryology Act 1990

1990 CHAPTER 37

Surrogacy

36 Amendment of Surrogacy Arrangements Act 1985.

(1) After section 1 of the M1Surrogacy Arrangements Act 1985 there is inserted—

“1A Surrogacy arrangements unenforceable.

No surrogacy arrangement is enforceable by or against any of the personsmaking it.”

(2) In section 1 of that Act (meaning of “surrogate mother”, etc.)—(a) in subsection (6), for “or, as the case may be, embryo insertion” there is

substituted “or of the placing in her of an embryo, of an egg in the process offertilisation or of sperm and eggs, as the case may be,”, and

(b) in subsection (9), the words from “and whether” to the end are repealed.

Annotations:

Marginal CitationsM1 1985 c. 49.


2 Human Fertilisation and Embryology Act 1990 (c. 37)Document Generated: 2014-04-11

Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial team to HumanFertilisation and Embryology Act 1990. Any changes that have already been made by the teamappear in the content and are referenced with annotations.

Changes and effects yet to be applied to the whole Act associated Parts and Chapters:– Act savings for effects of 2008 c. 22 by S.I. 2010/986 art. 3Whole provisions yet to be inserted into this Act (including any effects on thoseprovisions):– s. 3ZA inserted by 2008 c. 22 s. 3(5)– s. 4A inserted by 2008 c. 22 s. 4(2)– s. 8B-8D inserted by 2008 c. 22 s. 8– s. 8E inserted by 2008 c. 22 s. 9– s. 8ZA inserted by 2008 c. 22 s. 7– s. 9A substituted for s. 9 by 2008 c. 22 s. 10– s. 18 18A substituted for s. 18 by 2008 c. 22 s. 18– s. 19-19B substituted for s. 19 by 2008 c. 22 s. 19– s. 19C inserted by 2008 c. 22 s. 20– s. 31-31ZG substituted for s. 31 by 2008 c. 22 s. 24– s. 33A-33D substituted for s. 33 by 2008 c. 22 s. 25– s. 33A(1) excluded by S.I. 2009/2232 art. 4– s. 35A and cross-heading inserted by 2008 c. 22 s. 26– s. 35B and cross-heading inserted by 2008 c. 22 s. 27– s. 38A inserted by 2008 c. 22 s. 28(1)– s. 45A inserted by 2008 c. 22 s. 31– s. 45B inserted by 2008 c. 22 s. 32– Sch. 3B inserted by 2008 c. 22 Sch. 5– Sch. 3ZA inserted by 2008 c. 22 Sch. 4

Commencement Orders yet to be applied to the Human Fertilisation and EmbryologyAct 1990Commencement Orders bringing legislation that affects this Act into force:– S.I. 2003/708 art. 2 commences (2001 c. 16)– S.I. 2006/1997 art. 3(2) art. 2 Sch. commences (2004 c. 30)– S.I. 2009/479 art. 2-6 commences (2008 c. 22)– S.I. 2009/2232 art. 2 commences (2008 c. 22)– S.I. 2010/30 art. 2-4 commences (2009 c. 21)– S.S.I. 2009/267 art. 2 commences (2007 asp 4)













































http://www.legislation.gov.uk/id/uksi/2006/1997/article/3/2


http://www.legislation.gov.uk/id/uksi/2006/1997/schedule













http://www.legislation.gov.uk/id/ssi/2009/267

http://www.legislation.gov.uk/id/ssi/2009/267/article/2

http://www.legislation.gov.uk/id/asp/2007/4

Changes to legislation: There are currently no known outstanding effects for the HumanFertilisation and Embryology Act 2008, Part 2 . (See end of Document for details)

Human Fertilisation andEmbryology Act 2008

2008 CHAPTER 22

PART 2

PARENTHOOD IN CASES INVOLVING ASSISTED REPRODUCTION

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 ofan embryo or of sperm and eggs, and no other woman, is to be treated as the motherof the child.

(2) Subsection (1) does not apply to any child to the extent that the child is treated byvirtue of adoption as not being the woman's child.

(3) Subsection (1) applies whether the woman was in the United Kingdom or elsewhereat the time of the placing in her of the embryo or the sperm and eggs.

Annotations:

Modifications etc. (not altering text)C1 S. 33(2) modified (6.4.2010) by The Human Fertilisation and Embryology (Parental Orders)

Regulations 2010 (S.I. 2010/985), reg. 5, Sch. 4




http://www.legislation.gov.uk/id/uksi/2010/985/regulation/5


2 Human Fertilisation and Embryology Act 2008 (c. 22)Part 2 – Parenthood in cases involving assisted reproduction

Document Generated: 2014-04-08Changes to legislation: There are currently no known outstanding effects for the Human

Fertilisation and Embryology Act 2008, Part 2 . (See end of Document for details)

Application of sections 35 to 47

34 Application 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 awoman (referred to in those sections as “W”) as a result of the placing in her of anembryo or of sperm and eggs or her artificial insemination, to determine who is to betreated as the other parent of the child.

(2) Subsection (1) has effect subject to the provisions of sections 39, 40 and 46 limitingthe purposes for which a person is treated as the child's other parent by virtue of thosesections.

Meaning of “father”

35 Woman 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 asthe father of the child unless it is shown that he did not consent to the placing in her ofthe 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 timementioned 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 istreated 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 artificiallyinseminated, in the course of treatment services provided in the UnitedKingdom 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 Wwas artificially inseminated, the agreed fatherhood conditions (as set out insection 37) were satisfied in relation to a man, in relation to treatment providedto 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 aman (“M”) in relation to treatment provided to W under a licence if, but only if,—

Human Fertilisation and Embryology Act 2008 (c. 22)Part 2 – Parenthood in cases involving assisted reproductionDocument Generated: 2014-04-08

3


(a) M has given the person responsible a notice stating that he consents to beingtreated as the father of any child resulting from treatment provided to W underthe licence,

(b) W has given the person responsible a notice stating that she consents to Mbeing so treated,

(c) neither M nor W has, since giving notice under paragraph (a) or (b), giventhe person responsible notice of the withdrawal of M's or W's consent to Mbeing so treated,

(d) W has not, since the giving of the notice under paragraph (b), given the personresponsible—

(i) a further notice under that paragraph stating that she consents toanother 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 womanbeing treated as a parent of any resulting child, and

(e) W and M are not within prohibited degrees of relationship in relation to eachother.

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

(3) A notice under subsection (1)(a), (b) or (c) by a person (“S”) who is unable to signbecause of illness, injury or physical disability is to be taken to comply with therequirement of subsection (2) as to signature if it is signed at the direction of S, in thepresence 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 anypresumption, applying by virtue of the rules of common law, that a child is thelegitimate 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 ofany 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 byvirtue of adoption as not being the man's child.

Annotations:

Modifications etc. (not altering text)C2 S. 38(4) modified (6.4.2010) by The Human Fertilisation and Embryology (Parental Orders)

Regulations 2010 (S.I. 2010/985), reg. 5, Sch. 4

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,




http://www.legislation.gov.uk/id/uksi/2010/985/regulation/5





(b) the creation of the embryo carried by W was brought about by using the spermof a man after his death, or the creation of the embryo was brought about usingthe sperm of a man before his death but the embryo was placed in W afterhis 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 inW after his death of the embryo which was brought about using hissperm before his death, and

(ii) to being treated for the purpose mentioned in subsection (3) as thefather of any resulting child,

(d) W has elected in writing not later than the end of the period of 42 days fromthe day on which the child was born for the man to be treated for the purposementioned 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 fatherof the child.

(2) Subsection (1) applies whether W was in the United Kingdom or elsewhere at thetime of the placing in her of the embryo or of the sperm and eggs or of her artificialinsemination.

(3) The purpose referred to in subsection (1) is the purpose of enabling the man'sparticulars to be entered as the particulars of the child's father in a relevant registerof births.

(4) In the application of this section to Scotland, for any reference to a period of 42 daysthere 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


(f) W has elected in writing not later than the end of the period of 42 days fromthe day on which the child was born for the man to be treated for the purposementioned in subsection (4) as the father of the child, and

(g) no-one else is to be treated—


5


(i) as the father of the child by virtue of section 35 or 36 or by virtue ofsection 38(2) or (3), or

(ii) as a parent of the child by virtue of section 42 or 43 or by virtue ofadoption,

then the man is to be treated for the purpose mentioned in subsection (4) as the fatherof 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 providedto 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


(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 proposedto be provided to W in the United Kingdom by a person to whom a licenceapplies,

(g) W has elected in writing not later than the end of the period of 42 days fromthe day on which the child was born for the man to be treated for the purposementioned 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


adoption,then the man is to be treated for the purpose mentioned in subsection (4) as the fatherof the child.

(3) Subsections (1) and (2) apply whether W was in the United Kingdom or elsewhere atthe 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'sparticulars to be entered as the particulars of the child's father in a relevant registerof births.

(5) In the application of this section to Scotland, for any reference to a period of 42 daysthere is substituted a reference to a period of 21 days.

41 Persons not to be treated as father

(1) Where the sperm of a man who had given such consent as is required by paragraph5 of Schedule 3 to the 1990 Act (consent to use of gametes for purposes of treatmentservices or non-medical fertility services) was used for a purpose for which suchconsent was required, he is not to be treated as the father of the child.




(2) Where the sperm of a man, or an embryo the creation of which was brought aboutwith his sperm, was used after his death, he is not, subject to section 39, to be treatedas the father of the child.

(3) Subsection (2) applies whether W was in the United Kingdom or elsewhere at thetime of the placing in her of the embryo or of the sperm and eggs or of her artificialinsemination.

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 ofher artificial insemination, W was a party to a civil partnership, then subject tosection 45(2) to (4), the other party to the civil partnership is to be treated as a parent ofthe child unless it is shown that she did not consent to the placing in W of the embryoor 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 timementioned 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 istreated 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 artificiallyinseminated, in the course of treatment services provided in the UnitedKingdom 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 wasartificially inseminated, the agreed female parenthood conditions (as set outin section 44) were met in relation to another woman, in relation to treatmentprovided 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 ofthe child.

44 The agreed female parenthood conditions

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

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

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

(c) neither W nor P has, since giving notice under paragraph (a) or (b), given theperson responsible notice of the withdrawal of P's or W's consent to P beingso treated,


7


(d) W has not, since the giving of the notice under paragraph (b), given the personresponsible—

(i) a further notice under that paragraph stating that W consents to awoman 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 beingtreated as the father of any resulting child, and

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

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

(3) A notice under subsection (1)(a), (b) or (c) by a person (“S”) who is unable to signbecause of illness, injury or physical disability is to be taken to comply with therequirement of subsection (2) as to signature if it is signed at the direction of S, in thepresence 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, noman 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 anypresumption, applying by virtue of the rules of common law, that a child is thelegitimate 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 ofany 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 byvirtue 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 W,(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 theparent of any resulting child,

(e) W has elected in writing not later than the end of the period of 42 days fromthe day on which the child was born for the other party to the civil partnershipto be treated for the purpose mentioned in subsection (4) as the parent of thechild, 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 ofadoption,

then the other party to the civil partnership is to be treated for the purpose mentionedin 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 providedto 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 inrelation to treatment proposed to be provided to W in the United Kingdom bya person to whom a licence applies,

(f) W has elected in writing not later than the end of the period of 42 days fromthe day on which the child was born for the other woman to be treated for thepurpose 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


adoption,then the other woman is to be treated for the purpose mentioned in subsection (4) asa parent of the child.

(3) Subsections (1) and (2) apply whether W was in the United Kingdom or elsewhere atthe time of the placing in her of the embryo.

(4) The purpose referred to in subsections (1) and (2) is the purpose of enabling thedeceased woman's particulars to be entered as the particulars of the child's other parentin a relevant register of births.

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

47 Woman not to be other parent merely because of egg donation

A woman is not to be treated as the parent of a child whom she is not carrying and hasnot carried, except where she is so treated—

(a) by virtue of section 42 or 43, or(b) by virtue of section 46 (for the purpose mentioned in subsection (4) of that

section), or(c) by virtue of adoption.


9


Effect of sections 33 to 47

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 orparent (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 parentof the child, that person is to be treated in law as not being a parent of the child forany 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 betweentwo people in any enactment, deed or other instrument or document (whenever passedor 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 timeof 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 ofsection 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 personcapable of succeeding to or transmitting a right to succeed to any such dignityor 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 suchtitle, coat of arms or dignity or its devolution, and

(b) where the terms of any deed provide that any property or interest in propertyis to devolve along with a title, coat of arms, honour or dignity, nothing inthose 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 referredto—

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

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

(2) In subsection (1)(a) “judicial separation” includes a legal separation obtained in acountry 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 any timethere referred to—

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

(b) include the parties to a void civil partnership if either or both of themreasonably believed at that time that the civil partnership was valid; and for thepurposes 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 wasvalid.

(2) The reference in section 48(6)(b) to a civil partnership includes a reference to a voidcivil partnership if either or both of the parties reasonably believed at the time whenthey registered as civil partners of each other that the civil partnership was valid; andfor this purpose it is to be presumed, unless the contrary is shown, that one of themreasonably 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, iswhichever of the following is relevant—

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

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


11


(c) a register of live-births or still-births kept under the Births and DeathsRegistration (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 ofan election (which requires an election to be made either on or before the day on whichthe child was born or within the period of 42 or, as the case may be, 21 days from thatday) is nevertheless to be treated as satisfied if the required election is made after theend 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 theend of the period mentioned in subsection (1) if, on an application made to him inaccordance with such requirements as he may specify, he is satisfied that there is acompelling 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 andWales, the Registrar General of Births, Deaths and Marriages for Scotland or (as thecase 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 theinterpretation of any enactment, deed or any other instrument or document (wheneverpassed or made).

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

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

(4) This section does not affect the interpretation of the enactments specified insubsection (5) (which make express provision for the case where a child has a parentby 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 inaccordance with section 1(2)(a) or (b) of the Family Law Reform Act 1987 or Article155(2)(a) or (b) of the Children (Northern Ireland) Order 1995 (references to a personwhose father and mother were, or were not, married to each other at the time of theperson's birth).

Parental orders

54 Parental orders

(1) On an application made by two people (“the applicants”), the court may make an orderproviding for a child to be treated in law as the child of the applicants if—

(a) the child has been carried by a woman who is not one of the applicants, as aresult of the placing in her of an embryo or sperm and eggs or her artificialinsemination,

(b) the gametes of at least one of the applicants were used to bring about thecreation of the embryo, and

(c) the conditions in subsections (2) to (8) are satisfied.

(2) The applicants must be—(a) husband and wife,(b) civil partners of each other, or(c) two persons who are living as partners in an enduring family relationship and

are not within prohibited degrees of relationship in relation to each other.

(3) Except in a case falling within subsection (11), the applicants must apply for the orderduring the period of 6 months beginning with the day on which the child is born.

(4) At the time of the application and the making of the order—(a) the child's home must be with the applicants, and(b) either or both of the applicants must be domiciled in the United Kingdom or

in the Channel Islands or the Isle of Man.

(5) At the time of the making of the order both the applicants must have attained the ageof 18.

(6) The court must be satisfied that both—(a) the woman who carried the child, and(b) any other person who is a parent of the child but is not one of the applicants

(including any man who is the father by virtue of section 35 or 36 or anywoman who is a parent by virtue of section 42 or 43),


13


have freely, and with full understanding of what is involved, agreed unconditionallyto the making of the order.

(7) Subsection (6) does not require the agreement of a person who cannot be found or isincapable of giving agreement; and the agreement of the woman who carried the childis ineffective for the purpose of that subsection if given by her less than six weeksafter the child's birth.

(8) The court must be satisfied that no money or other benefit (other than for expensesreasonably incurred) has been given or received by either of the applicants for or inconsideration of—

(a) the making of the order,(b) any agreement required by subsection (6),(c) the handing over of the child to the applicants, or(d) the making of arrangements with a view to the making of the order,

unless authorised by the court.

(9) For the purposes of an application under this section—(a) in relation to England and Wales, section 92(7) to (10) of, and Part 1 of

Schedule 11 to, the Children Act 1989 (c. 41) (jurisdiction of courts) apply forthe purposes of this section to determine the meaning of “the court” as theyapply for the purposes of that Act and proceedings on the application are tobe “family proceedings” for the purposes of that Act,

(b) in relation to Scotland, “the court” means the Court of Session or the sheriffcourt of the sheriffdom within which the child is, and

(c) in relation to Northern Ireland, “the court” means the High Court or any countycourt within whose division the child is.

(10) Subsection (1)(a) applies whether the woman was in the United Kingdom or elsewhereat the time of the placing in her of the embryo or the sperm and eggs or her artificialinsemination.

(11) An application which—(a) relates to a child born before the coming into force of this section, and(b) is made by two persons who, throughout the period applicable under

subsection (2) of section 30 of the 1990 Act, were not eligible to apply for anorder under that section in relation to the child as husband and wife,

may be made within the period of six months beginning with the day on which thissection comes into force.

Annotations:

Modifications etc. (not altering text)C3 S. 54: power to modify conferred (6.4.2010) by Human Fertilisation and Embryology Act 1990

(c. 37), s. 35A (as inserted by Human Fertilisation and Embryology Act 2008 (c. 22), ss. 26, 68); S.I.2010/987, art. 2(b)

Commencement InformationI1 S. 54 wholly in force at 6.4.2010; s. 54 not in force at Royal assent see s. 68; s. 54 in force for certain

purposes at 6.4.2009 by S.I. 2009/479, art. 5(h) (with Sch.); s. 54 in force for certain further purposes




http://www.legislation.gov.uk/id/ukpga/1990/37/section/35A






http://www.legislation.gov.uk/id/uksi/2010/987/article/2/b






http://www.legislation.gov.uk/id/uksi/2009/479/article/5/h






at 1.10.2009 by S.I. 2009/2232, art. 2(q); s. 54 in force at 6.4.2010 otherwise by S.I. 2010/987, art.2(c)

55 Parental orders: supplementary provision

(1) The Secretary of State may by regulations provide—(a) for any provision of the enactments about adoption to have effect, with such

modifications (if any) as may be specified in the regulations, in relation toorders under section 54, and applications for such orders, as it has effect inrelation to adoption, and applications for adoption orders, and

(b) for references in any enactment to adoption, an adopted child or an adoptiverelationship to be read (respectively) as references to the effect of an orderunder section 54, a child to whom such an order applies and a relationshiparising by virtue of the enactments about adoption, as applied by theregulations, and for similar expressions in connection with adoption to be readaccordingly.

(2) The regulations may include such incidental or supplemental provision as appears tothe Secretary of State to be necessary or desirable in consequence of any provisionmade by virtue of subsection (1)(a) or (b).

(3) In this section “the enactments about adoption” means—(a) the Adoption (Scotland) Act 1978 (c. 28),(b) the Adoption and Children Act 2002 (c. 38),(c) the Adoption and Children (Scotland) Act 2007 (asp 4), and(d) the Adoption (Northern Ireland) Order 1987 (S.I. 1987/2203 (N.I. 22)).

Amendments of enactments

56 Amendments relating to parenthood in cases involving assisted reproduction

Schedule 6 contains amendments related to the provisions of this Part.

Annotations:

Commencement InformationI2 S. 56 wholly in force at 6.4.2010; s. 56 not in force at Royal Assent see s. 68; s. 56 in force for certain

purposes at 6.4.2009 and for further certain purposes at 1.9.2009 by S.I. 2009/479, art. 6(1)(f){(2)}; s.56 in force at 6.4.2010 otherwise by S.I. 2010/987, art. 2(d)

General

57 Repeals and transitional provision relating to Part 2

(1) Sections 33 to 48 have effect only in relation to children carried by women as a resultof the placing in them of embryos or of sperm and eggs, or their artificial insemination(as the case may be), after the commencement of those sections.

(2) Sections 27 to 29 of the 1990 Act (which relate to status) do not have effect in relationto children carried by women as a result of the placing in them of embryos or of sperm


http://www.legislation.gov.uk/id/uksi/2009/2232/article/2/q



http://www.legislation.gov.uk/id/uksi/2010/987/article/2/c

http://www.legislation.gov.uk/id/uksi/2010/987/article/2/c






http://www.legislation.gov.uk/id/uksi/2009/479/article/6/1/f




http://www.legislation.gov.uk/id/uksi/2010/987/article/2/d


15


and eggs, or their artificial insemination (as the case may be), after the commencementof sections 33 to 48.

(3) Section 30 of the 1990 Act (parental orders in favour of gamete donors) ceases to haveeffect.

(4) Subsection (3) does not affect the validity of any order made under section 30 of the1990 Act before the coming into force of that subsection.

Annotations:

Commencement InformationI3 S. 57 wholly in force at 6.4.2010; s. 57 not in force at Royal Assent see s. 68; s. 57(1)(2) in force at

6.4.2009 by S.I. 2009/479, art. 6(b) (with Sch.); s. 57 in force at 6.4.2010 otherwise by S.I. 2010/987,art. 2(e)

58 Interpretation of Part 2

(1) In this Part “enactment” means an enactment contained in, or in an instrument madeunder—

(a) an Act of Parliament,(b) an Act of the Scottish Parliament,(c) a Measure or Act of the National Assembly for Wales, or(d) Northern Ireland legislation.

(2) For the purposes of this Part, two persons are within prohibited degrees of relationshipif one is the other's parent, grandparent, sister, brother, aunt or uncle; and in thissubsection references to relationships—

(a) are to relationships of the full blood or half blood or, in the case of an adoptedperson, 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.

(3) Other expressions used in this Part and in the 1990 Act have the same meaning in thisPart as in that Act.

Annotations:

Commencement InformationI4 S. 58 partly in force; s. 58 not in force at Royal assent see s. 68; s. 58 in force for certain purposes at

6.4.2009 by S.I. 2009/479, art. 5(h) (with Sch.)




http://www.legislation.gov.uk/id/ukpga/2008/22/section/57/1/2


http://www.legislation.gov.uk/id/uksi/2009/479/article/6/b




http://www.legislation.gov.uk/id/uksi/2010/987/article/2/e






http://www.legislation.gov.uk/id/uksi/2009/479/article/5/h


16 Human Fertilisation and Embryology Act 2008 (c. 22)Document Generated: 2014-04-08

Changes to legislation: There are currently no known outstanding effects for the Human Fertilisation and EmbryologyAct 2008, Part 2 .

C51 Application for a parental order (04.13) © Crown copyright 2013

C51

Please complete this form using black ink

The notes on page 9 of this form will tell you what to do when you have completed the form.

If there is more than one child you must fill in a separate form for each child.

Cafcass/CAFCASS CYMRU will carry out checks as it considers necessary.Cafcass - Children and Family Court Advisory and Support Service (in England); CAFCASS CYMRU - Children and Family Court Advisory and Support Service Wales.

Application for a Parental OrderSection 54 Human Fertilisation and Embryology Act 2008

Please answer every part. if a part does not apply or you do not know what to say please say so. If there is not enough room continue on another sheet (put the child’s name and the number of the part on the sheet).

If you have any concerns about giving your address or that of the child, you may give an alternative address where papers can be served. However, you must notify the court of the actual address on a separate form available from the court.

1. About the child

The birth name of the child

First name

Middle name(s)

Surname

Date of birth D D / M M / Y Y Y Y Gender Male Female

The address where the child was born

The address where the child lives now

The person(s) who have parental responsibility

See notes on the last page

The name(s) of the child if a Parental Order is made

The child has had their home with the applicants continuously since

D D / M M / Y Y Y Y

To be completed by the court

Name of court

Date received by the court

Date issued

Case number

Postcode

Postcode

2

2. About the applicants

1st Applicant

Your first name

Middle name(s)

Surname

Place of birth


Your occupation

Are you a genetic parent of the child?

Yes No

Are you domiciled in the United Kingdom, Channel Islands or the

Isle of Man?Yes No

2nd Applicant

Your first name

Middle name(s)

Surname

Place of birth


Your occupation

Are you a genetic parent of the child?

Yes No

Are you domiciled in the United Kingdom, Channel Islands or the

Isle of Man?Yes No

3

Both applicants

If you do not wish your address to be made known to the respondent, leave the address details blank and complete Confidential Address Form C8.

Address

Home telephone number

Mobile telephone number

Have you lived at this address for more than 5 years?

Yes No

If No, please provide details of all previous addresses you have lived at for the last 5 years.

About the applicants (continued)

Postcode

4

Do you have a solicitor acting for you? Yes No

If Yes, please give the following details

Your solicitor’s name

Name of firm

Address

Telephone number

Fax number

DX number

Solicitor’s Reference

Your solicitor’s details

Postcode

About the applicants (continued)

3. About the birth parents

The birth mother

Her full name

Her full address

The birth father (if any)

His full name

His full address

Postcode

Postcode

5

4. Parental agreement

Does the birth mother agree to a Parental Order being made?

Yes No

Does the birth father or other parent (if applicable) agree to a

Parental Order being made?Yes No

• The agreement of the birth mother and father (where appropriate) is required, or must be dispensed with under one of the grounds listed below, before an order can be made.

• The child must be at least 6 weeks old when the agreement is given.

Will you be asking the court to dispense with the agreement of

a birth parent?Yes No

If Yes, give the name(s) of the birth parent(s) whose agreement

you wish to dispense with.

The grounds for dispensing with the agreement are the person(s) cannot be found

or

the person(s) are incapable of giving agreement

Please provide a separate statement of facts you are using for dispensing with agreement (and copies for the respondent.)

IMPORTANT: The court will send a copy of your statement of facts to each respondent. If you intend to ask the court to keep your address confidential, you should make sure that the statement of facts does not include any information that could identify where you live.

5. General information

Has the child ever been looked after by a local authority or voluntary organisation?

Yes No

If Yes,• give the period during

which this organisation has looked after the child

• give details of the organisation

Have there been, or are there any other court proceedings pending or in progress which concern this child?

Yes No

If Yes, give details of the proceedings.

Give the name of the court and the case number of the proceedings, if known.

6

General information (continued)

To the best of your knowledge, have there been, or are there any court proceedings pending or in progress which concern any other children of the applicants’ family?

Yes No

If Yes, give details of the proceedings.

Give the name of the court and the case number of the proceedings, if known.

Is there a licensed treatment centre?

Yes No

If Yes, give the name, address and any reference of the

treatment centre.

Cases concerning a related child

To the best of my knowledge, no proceedings relating to a full, half or step brother or sister of the child have been completed or commenced in any court

OR

The following proceedings relating to a full, half or step brother or sister of the child have been completed/commenced (please, attach a copy of the final order)

Relationship to child (eg. sister, half-brother)

Type of order made (or applied for)

Date of order (or date of next hearing)

Name of court Case number (or serial number)

7

6. The respondents

The respondent(s) will be • The woman who carried the child• any other person who is a parent of the child but is not one of the applicants

(including any man who is the father by virtue of section 35 or 36 of the 2008 Act or any woman who is a parent by virtue of section 42 or 43 of that Act)

• any person in whose favour there is provision for contact with the child• any other persons or body with parental responsibility for the child at the

date of the application.

You need not give details of the birth parent(s)

The name of the respondent The respondent’s address

Please put the address where the respondent usually lives or can be served with papersYou will have to serve a copy of this application and the other papers required on each of the respondents (including the birth parent(s))

7. Declaration

We declare that • we are married to each other and our marriage certificate is attached,or• we are civil partners and our civil partnership certificate is attached,or• we are living as partners in an enduring family relationship and are not

within the prohibited degrees of relationship to each other

• that no money or other benefit (other than for expenses reasonably incurred) has been received or given by the applicants for or in consideration of the matters set out in section 54(6) of the Human Fertilisation and Embryology Act 2008

• a copy of the child’s birth certificate is attached and the child is the person to whom the attached certified copy of the entry in the Register of Live Births relates

• the information we have given is correct and complete to the best of our knowledge

We believe the facts stated on this form are true. Court proceedings may be brought against a person who makes or causes to be made, a false statement in a document.

1st ApplicantSigned

Date D D / M M / Y Y Y Y

2nd ApplicantSigned

Date D D / M M / Y Y Y Y

8

9. Attending the court

Section N of the the booklet ‘CB1 - Making an application - Children and the Family Courts’ provides information about attending court.

If you require an interpreter, you must tell the court now so that one can be arranged.

If Yes, please specify the language and dialect:

Do you or any of the parties need an interpreter at court?

Yes No

If attending the court, do you or any of the parties involved have a disability for which you require special assistance or special facilities?

Yes No

If Yes, please say what the needs are

Please say whether the court needs to make any special arrangements for you to attend court (e.g. providing you with a separate waiting room from the respondent or other security provisions).

Court staff may get in touch with you about the requirements

9

• Take or send this form to the court with a copy for service on each of the respondent(s) listed in Parts 3 and 6. The form will be kept by the court. the other copies will be given or sent back to you.

• You must send or take

– the form of Acknowledgement (form C52)

– a copy of this Application form

to each respondent according to the Rules.

What you (the person applying) must do next

10

Notes about parental responsibility, birth parents and prohibited degree of relationship

Parental responsibility

Some people have ‘parental responsibility’ for a child. The law says what ‘parental responsibility’ is and which people have it. These people include:

A the birth mother

B the birth fatherif he was married to the child’s birth mother when the child was born

C the birth fatherif he was not married to the child’s birth mother when the child was born

but registered the birth jointly with the child’s birth mother

or he now has a court order which gives him parental responsibility

or he now has a formal ‘parental responsibility agreement’ with the child’s birth mother

or he has since married the child’s birth mother

D a guardian of the child

E someone who holds a custody or residence order

F a local authority which has a care order

G someone who holds an emergency protection order

H any man or woman who has adopted the child

I the second female parent,if she was the civil partner of the child’s birth mother when the child was born

J the second female parentif she was not the civil partner of the child’s birth mother when the child was born

but registered the birth jointly with the child’s birth mother

or she now has a court order which gives her parental responsibility

or she now has a formal ‘parental responsibility agreement’ with the child’s birth mother

or she has since become the civil partner of the child’s mother

K someone who has been appointed as a special guardian for the child

Birth Parents

The birth father is• the man (whether or not he is the genetic father

of the child) with whom a birth mother received treatment at a licensed treatment centre when he has given a notice to the responsible person stating that he consents to being treated as the father of the child and the birth mother has also given a notice that she consents to him being treated as the father of the child. This is provided no subsequent notices withdrawing consent have been given and provided the man and the woman are not within prohibited degree of relationship in relation to each other. (Sections 35 and 36 of the 2008 Act.)

• the husband of a birth mother whether or not he is the genetic father of the child.This does not apply if it can be shown that the husband did not consent to her treatment.

The second female parent is• the civil partner of a birth mother.

This does not apply if it can be shown that she did not consent to her treatment.

• the woman with whom a birth mother received treatment at a licensed treatment centre when she has given a notice to the responsible person stating that she consents to being treated as the parent of the child and the birth mother has also given a notice that she consents to her being treated as the parent of the child. This is provided no subsequent notices withdrawing consent have been given and provided the birth mother and the woman are not within prohibited degree of relationship in relation to each other. (Sections 42 and 43 of the 2008 Act.)

Prohibited degree of relationship

Two people are within the prohibited degree of relationship with each other if they share the following relationship:

Adoptive child Grandparent

Adoptive parent Grandchild

Child Parent

Former adoptive child Parent’s sibling (aunt, uncle)

Former adoptive parent Sibling (brother, sister, half-brother, half-sister)

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