1. Who are the parents of the child?

Under a surrogacy arrangement a couple ('the commissioning couple') ask a woman ('the surrogate mother') to carry a child for them. The agreement is that shortly after birth the surrogate mother will hand the child to the commissioning couple for them to bring up. Sometimes the surrogate mother is a friend or relative of the commissioning couple, other times she is paid.

Human Fertilisation and Embryology Act 1990, section 28

(2) if-

1. at the time of the placing in her of the embryo or the sperm and eggs or of her insemination, the woman was a party to a marriage, and

2. 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 subsection (5) below, the other party to the marriage shall 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 insemination (as the case may be).

Human Fertilisation and Embryology Act 1990, section 28(3)

If no man is treated, by virtue of subsection (2) above, as the father of the child but -

1. the embryo or the sperm and eggs were placed in the woman, or she was artificially inseminated, it the course of treatment services provided for her and a man together by a person to whom a licence applies, and

2. the creation of the embryo carried by her was not brought about with the sperm of that man,

then subject to subsection (5) below, that man shall be treated as the father of the child.

Re R (IVF: Paternity of the child) [2005] 2 FLR 843

Concerning: when an unmarried partner can become a father in a case of assisted reproduction

Facts

An unmarried woman and her partner were approved for infertility treatment at a licensed clinic. After the approval the couple separated, although they did not inform the clinic of this. They were no longer a couple at the time the egg, fertilised with donated sperm, was implanted into the woman. Following the birth the partner sought a declaration that he was the father of the child.

Legal principle

The only way the man could claim to be the father was under section 28(3). To rely on this section he needed to show he was receiving treatment services together with the mother at the time when the egg was implanted. To be receiving treatment services together the couple needed to show that they were embarking on the treatment as part of a joint enterprise. This would be looked at from the point of view of the couple themselves and the clinic. In this case at the time of the implantation they could not be said to be receiving treatment services together and so the man was not the father.

Leeds Teaching Hospital Trust v. A [2003] 1 FCR 599

Concerning: who the parents are of a child after a mix-up in an IVF clinic

Facts

Mr and Mrs A attended a clinic for infertility treatment. By mistake, Mrs A's egg was fertilised by sperm from Mr B rather than Mr A. The resulting embryo was placed in Mrs A and a child born. The court was asked to declare the identity of the father of the resulting twins.

Legal principle

Mr A could not be a father based on section 28(2) because he had not consented to the placing of this embryo (made using another man's sperm) into his wife. Nor could he be a father based on section 28(3) because, again, he had not consented to receive these treatment services (using another man's sperm) with the mother. In the absence of any statutory provision to the contrary, the genetic father is the legal father and so in this case Mr B was the child's father. However, Mr and Mrs A, if they wished, could adopt the child or Mr A could apply for parental responsibility. The availability of these legal mechanisms to formalise the situation meant there was not improper interference with the rights of Mr and Mrs A under Article 8, ECHR.