Parenthood: Who are a Child's Legal Parents?

Ever wondered who your ‘legal’ parents are? This is increasingly an issue with the gradual shift in societal norms and the disintegration of the traditional family unit. In today’s society, paternity issues often arise in same sex relationships, adoption, foster care, surrogacy, sperm donations, and so on.

The issue for an individual as to who his or her parents are in law can have a great impact on many of the decisions made in their life, particularly during childhood when they cannot make their important decision on their own. A legal parent has ‘parental responsibility’ which is all the legal rights and responsibilities in relation to the child. It is also potentially important for the purposes of, for instance, citizenship status, maintenance obligations on the part of the parents, and hereditary rights on the death of the legal parent.

The woman who gives birth to the child is the child’s legal mother – even if she is not genetically related to the child. According to the Human Fertilisation and Embryology Act 2008 (HFEA) section 33(1): “The Woman who is carrying or has carried a child as a result of the placing in her an embryo or a sperm and eggs, and no other woman, is to be treated as the mother of the child.”

The genetic/biological father will usually be considered the legal father, subject to certain exceptions. There is a presumption of paternity in relation to a child born to a married woman in favour of the husband. There is also the presumption of paternity if a man’s name appears on a child’s birth certificate, and to children born as a result of fertility treatment.

However, these are ‘rebuttable’ presumptions. Satisfactory evidence confirming paternity is needed by an applicant to rebut such a presumption.

Where a child is born following the placing of an embryo or eggs in a woman, and she was married but her husband’s sperm was not used, the husband will be treated as the legal father – unless it is shown that he did not consent to the treatment. If it can be proved that he did not consent, and the treatment took place in a HEFA licenced UK clinic, the sperm donor will be the legal father. If it did not, the mother will be the sole legal parent.

Where a child is born following the placing of an embryo or eggs and sperm into a woman, or following artificial insemination (assuming treatment took place in a HEFA licenced UK clinic), and she was in a civil partnership or married to another woman under UK law, the other woman is to be treated as the child’s second parent. However, if it can be shown they were not treated jointly as a couple, and procedures were not followed, the mother will be the sole parent.

If the rules regarding a mother’s spouse or civil partner do not apply, the mother’s unmarried male partner may be treated as the legal father if he was alive at the time of treatment; donor sperm was used; and the ‘agreed fatherhood conditions’ under the HFEA were satisfied.

The agreed fatherhood conditions are:

• The man has given notice consenting to him being treated as the child’s father
• The woman has also given notice of her consenting to the man being treated as the child’s father
• Neither the mother nor unmarried male partner have since withdrawn their consent
• The woman has not given further notice of consenting to another man being treated as the child’s father
• The woman and man are not within the prohibited degrees of relationship to another

An unmarried female partner may be treated as the child’s other parent if the woman was alive at the time of treatment, and the agreed female parenthood conditions under the HFEA are satisfied. These conditions mirror the agreed fatherhood conditions (above).

The law says that the woman who gave birth to the child is the legal mother. So in surrogacy situations, the ‘parents’ would have to apply under the HEFA for a parental order. A married couple, civil partners, and parents in an enduring relationship, who are also the commissioning parents, can therefore apply for a parental order where their child was born through a surrogate mother.

It is important for a child to know who their parents are. Under Article 7(1) of the United Nations Convention on the Rights of a Child, a child has the right to know their parents. In addition, under Article 8 European Convention on Human Rights, it can be argued that determining your paternity is part of the right to a private and family life.

An application to court can be made on behalf of the child for an acknowledgment of paternity. The court can order DNA tests to be carried out on the mother, father and the child. The court may draw inferences from an adult’s refusal to consent to samples being taken for DNA testing. If the proposed father is established to be the biological father, the court will make an acknowledgement of paternity and the child’s birth can be re-registered with the Registry Office with the legal father’s name and details included.

There are further ways to establish legal paternity, and specialist legal advice should be sought.