A fertile subject

Much of the controversy over the human fertilisation bill in parliament focused on its regulatory changes. Though the 2008 Act does not alter the basic regulatory framework created by the Human Fertilisation and Embryology Act 1990, it deals with controversial new technologies, setting out clearly what the Human Fertilisation and Embryology Authority can and cannot license and so drawing public policy lines in highly sensitive areas.

For example, the 2008 Act covers embryo testing specifically for the first time, allowing (within certain limits) testing for the purpose of selecting an embryo that will be a tissue match for an older sick sibling, but not for choosing the sex of a child for non-medical reasons.

New regulatory powers

It is also made clear that research involving hybrid embryos (embryos which involve some human and some animal element) can be authorised under licence but subject to certain absolute restrictions, for example that a hybrid embryo cannot be placed in a woman or be allowed to develop beyond 14 days. Such changes deal with scientific developments not on the horizon when the original legislation was passed in 1990.

There are also changes that result not from scientific developments, but from our greater understanding of the impact of assisted reproduction on families and patients. For example, the rights of donor-conceived people to access information held by the HFEA are being extended, allowing some information to be made available at age 16 rather than 18, and allowing contact to be made between genetic half siblings who want to be put in touch with each other. Changes are also made to the embryo storage rules, allowing embryos to be stored for ten rather than five years and improving the procedure which applies in the difficult situation where one partner withdraws consent to continued storage.

A further change which provoked enormous controversy during the Bill's passage through Parliament was the obligation of clinics to consider the prospective child's 'need for a father' before offering treatment. The 2008 Act replaces this with an obligation to consider the prospective child's 'need for supportive parenting', adopting a more neutral wording which makes it clear that single women and same-sex couples should be treated in the same way as heterosexual couples presenting for treatment.

What makes a parent?

The regulatory controversies are interesting, but probably of much less practical relevance for practitioners than the new rules on parenthood. For the increasing numbers of families created through assisted reproduction, these rules determine the very basic question of who a child's parents are. This is a question that all private client practitioners '“ including will drafters, tax planners and divorce lawyers '“ will need to know the answer to if they are acting for such a family.

Heterosexual couples conceiving through fertility treatment

Heterosexual couples who conceive through fertility treatment with their own eggs and sperm are almost invariably the parents of their child. Possible questions arise, however, where donor eggs or sperm are used so that one or both partners is not the biological parent. The 1990 Act put in place rules to deal with such situations, and for heterosexual couples these rules are largely reinstated by the 2008 Act.

The 2008 Act provides that legal motherhood hinges on gestation, rather than biology. Section 33(1) of the 2008 Act (reinstating the old s.27 of the 1990 Act) states that the woman who carries a child 'and no other' is his or her legal mother. For women conceiving with donor eggs, this establishes with certainty that the intended mother is the legal mother and that the egg donor (the genetic mother) has no status as a parent, though her details are retained on the HFEA Register of Information and are made available to the child in adulthood.

The existing rules also protect male partners conceiving through sperm donation. Section 35 of the 2008 Act (reinstating s.28 of the 1990 Act) provides that if a woman is married at the time of treatment, then her husband is 'treated as the father of the child unless it is shown that he did not consent.' Despite his lack of biological paternity, the carrying mother's husband in a sperm donation case is therefore the legal father. The sperm donor has no status as a parent but his details (if the conception occurred at a licensed clinic) are retained on the HFEA Register of Information and are made available to the child in adulthood.

The 1990 Act was forward thinking enough to extend similar protection to unmarried male partners conceiving through sperm donation. A man who has fertility treatment with his unmarried female partner at a licensed clinic is therefore treated as the father of a child conceived with donor sperm if treatment is provided to the couple 'together'. Like any other unmarried father, he will only have parental responsibility if named on the birth certificate, but will nevertheless be the father of the child for the purposes of inheritance and financial responsibility.

One of the problems that has arisen from the 1990 Act is that the concept of 'treatment together' for unmarried couples is a grey one. In practice, this has created difficulties, most notably in Re (A Child) (IVF: Paternity of Child) HL [2005] 2 WLR 1158, where a couple separated during the course of treatment and the court had to decide whether the paperwork they had signed at the clinic, or the wider facts and circumstances, should determine the position. It is probably as a result of this case, and the uncertainty created by the decision that each case must be determined on its wider facts, that we see the first important change introduced by the 2008 Act to the parenthood rules.

The 2008 Act abolishes the concept of 'treatment together' for unmarried couples and replaces it with a new system of written elections which, if in place at the time of treatment, make the male partner the legal father. These changes are expected to come into force in April 2009, making it critical for unmarried couples conceiving with donor sperm to execute the right paperwork if they want the male partner to be treated as the father of the child. For practitioners advising unmarried couples who have conceived with donor sperm, it means that the circumstances (and the date) of conception will need to be investigated carefully.

Lesbian couples

The 1990 Act did not afford similar recognition to same-sex partners of women conceiving through sperm donation, which means that the non-birth mother in a lesbian partnership is currently not recognised as a parent of her child unless she has taken steps to acquire parenthood after the birth (typically through adoption).

The 2008 Act addresses this issue. Provisions identical to those governing heterosexual couples will apply to same-sex couples who conceive a child with donor sperm after April 2009:

Where a female civil partner conceives by 'artificial insemination' after April 2009, her civil partner will be treated as the child's 'parent' unless it is shown she did not consent. There is, in effect, a presumption that the non-birth mother is a parent, and there is no requirement for the couple to conceive at a licensed clinic for this to apply, which means that even lesbian couples conceiving artificially at home with a known donor will be covered.

For non-civil partners, there are additional hurdles (as there are for unmarried heterosexual couples). The non-birth mother will be the child's parent if the couple conceives at an HFEA-licensed clinic and if the relevant written elections are in place at the time of conception.

If a child has two female parents, this also means that there is no legal father, since the law only allows for two legal parents. Under the current law, a known sperm donor who donates to a lesbian couple will usually (unless treatment takes place through a clinic, or the couple has subsequently adopted the child) be the legal father of the child. From April 2009, the natural father's status as a parent is much more likely to be excluded.

For practitioners advising one of the increasing numbers of same-sex couples with children (or advising a man who has fathered their child), understanding these complex rules could be crucial. Practitioners drafting wills, for example, will need to consider whether a gift to 'my children' will include the donor-conceived child or whether specific provision needs to be made to include or exclude them. Practitioners advising on relationship breakdown will need to understand whether it is the non-birth mother or the donor who is financially responsible as the child's second parent. The date and circumstances of conception of each child will therefore need to be investigated carefully.

Surrogacy

The other change to the parenthood rules in the 2008 Act relates to surrogacy situations, which are probably less commonly encountered in practice. The parenthood rules set out above have the effect that the surrogate mother (as the carrying mother) is the legal mother of a child born through surrogacy at birth and, if she is married, her husband is the legal father.

For such situations, the 1990 Act created a mechanism whereby the intended parents could apply for a 'parental order' after the birth to reassign parenthood. From April 2010, the 2008 Act will open the parental order system (only available to married couples) to unmarried and same-sex couples as well.

Effects on private client practice

The 2008 Act has been a controversial and much-publicised piece of legislation which will update the law governing fertility treatment and embryo research in the UK. Though much of the controversy in Parliament focused on the regulatory changes, in practice it is the parenthood rules which are likely to be of most practical significance for practitioners. Who the parents of a child born through assisted reproduction are can be a complex though essential question, and private client practitioners should ensure that they have at least basic familiarity with the new rules.