Section 33 of the Human Fertilisation and Embryology Act (HFEA 2008—applicable from 6 April 2009) applies where conception takes place artificially and provides that “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.” This provision applies for English legal purposes “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.”

Section 27 of the HFEA 1990 applies for English legal purposes in identical terms to s33 HFEA 2008 in respect of children conceived artificially between 1 August 1991 and 5 April 2009.

Section 33 HFEA 2008 (and s27 HFEA 1990) confers legal motherhood and parental responsibility upon the woman who carries the pregnancy and excludes the legal motherhood and parental responsibility of the egg donor, regardless of where in the world conception takes place, for English legal purposes. (These provisions also confer legal motherhood upon a woman who conceives artificially using her own eggs or embryos comprising her own eggs.)

This means that for English legal purposes the egg donor has no legal status for the child, and legal and financial responsibility for the child is conferred upon the woman who carried the pregnancy and gave birth to the child.

Section 35 HFEA 2008 (applicable to conceptions as from 6 April 2009) provides that if “at the time of the placing in her of the embryo or of the sperm and eggs or of her artificial insemination, W [a woman] was a party to a marriage [with a man]”¹ and “the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage” then “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.” This provision applies for English legal purposes no matter where in the world the woman conceives artificially.

Section 35 HFEA 2008 therefore provides scope for the husband of a married woman who conceived artificially with donor sperm to dispute the conferral of legal fatherhood upon him on the basis that he did not consent to her treatment. Such cases are a question of fact and degree and they can create complex legal issues and hard-fought court proceedings, making expert legal advice advisable. Any legal disputes that do arise can call into question the role of the UK licensed clinic, the advice provided, and the completion of appropriate paperwork. This, in turn, raises implications from a time, cost, licence, and reputation management perspective for UK licensed clinics.

Section 28(2) HFEA 1990 provides for English legal purposes that the husband of a married woman who conceives artificially with donor sperm is the legal father in respect of children conceived between 1 August 1991 and 5 April 2009 unless it can be shown he did not consent to her treatment. This again provides scope for legal disputes to arise in respect of patients who conceived under this provision some years ago and risks for UK licensed clinics.

Section 36 HFEA 2008 (applicable to conceptions as from 6 April 2009) governs legal fatherhood of a child conceived artificially with donor sperm in cases where no man is treated as the father by virtue of section 35 HFEA 2008 (and no woman is treated by virtue of section 42 HFEA 2008 as a parent of the child—see below). The man will be the child’s legal father if “the embryo or the sperm and eggs were placed in W [woman], or W was artificially inseminated, in the course of treatment services provided in the United Kingdom by a person to whom a licence applies” and “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” and “the man is alive at the time of treatment” and “the creation of the embryo carried by W was not brought about with the man’s sperm.”

The agreed fatherhood conditions, as set out in section 37 HFEA 2008, require the man and the woman to each give to the person responsible at the UK licensed clinic before conception takes place, notice in writing (and signed) that they consent to the man being treated as the father of any child resulting from treatment provided to the woman under the licence, that such consent has not been withdrawn in writing, that the woman has not subsequently given a further notice stating that she consents to another man being treated as the father of the resulting child, or that she consents to a woman being treated as a parent of any resulting child, and that the man and the woman are not within prohibited degrees of relationship to each other. The agreed fatherhood provisions are usually effected by the completion of designated HFEA forms at the UK licensed clinic, which evidence the man and the woman’s informed consent to treatment and to the acquisition of legal fatherhood by the man. As such, there is scope for legal disputes to arise if there are issues about the extent of either the man or the woman’s informed consent to treatment in situations where there are questions about the withdrawal of consent, where the relevant paperwork is wrongly completed or not completed at all, or signed after treatment has taken place. Any legal disputes that do arise can therefore call into question the role of the UK licensed clinic, with ensuing implications from a time, cost, licence, and reputation management perspective.

Section 28(3) HFEA 1990 provides for English legal purposes that the unmarried male partner of a woman is the legal father in respect of children conceived between 1 August 1991 and 5 April 2009 if the woman conceives “in the course of treatment services provided for her and a man (who is not the biological father) together” at a UK licensed fertility clinic and she has no husband who takes precedence. The concept of “treatment together” proved nebulous in practice and gave rise to some uncertainty about the legal parentage of the child. Section 36 HFEA 2008 was therefore introduced to provide greater certainty about legal parentage. Section 28(3) HFEA 1990 therefore provides scope for legal disputes to arise in respect of patients who conceived under this provision some years ago and ensuing risks for UK licensed clinics.

If a man becomes a legal parent of a child through operation of sections 35 or 36 HFEA 2008, he can be registered as a legal parent on the child’s birth certificate and he will be legally and financially responsible for the child.

Section 42 HFEA 2008 provides that “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 [or a marriage with another woman]² the other party to the civil partnership [or marriage]³ 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.” This provision also applies no matter where in the world conception takes place for English legal purposes.