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Human Fertilisation and Embryology (Deceased Fathers) Bill

This is the text of the Human Fertilisation and Embryology (Deceased Fathers) Bill, as presented to the House of Commons on 17 January 2001.

 
EXPLANATORY NOTES

Explanatory Notes to the Bill, prepared by the Department of Health with the consent of Mr Tony Clarke MP, the Member in charge of the Bill, will be published separately as Bill 24- EN.


EUROPEAN CONVENTION ON HUMAN RIGHTS

Mr Secretary Straw has made the following statement under section 19(1)(a) of the Human Rights Act 1998:

In my view the provisions of the Vehicles (Crime) Bill are compatible with the Convention rights.


 
  
Human Fertilisation and Embryology (Deceased Fathers) Bill
 
 
 
 
ARRANGEMENT OF CLAUSES
Clause 
1.Certain deceased men to be registered as fathers.
2.Consequential and retrospective provision.
3.Short title, commencement and extent.
 

SCHEDULES:
    -Consequential amendments.-
 


 

 
 
A

B I L L

TO

Make provision about the circumstances in which, and the extent to which, a man is to be treated in law as the father of a child where the child has resulted from certain fertility treatment undertaken after the man's death; and for connected purposes.

BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-
 

Certain deceased men to be registered as fathers.     1. - (1) After section 28(5) of the Human Fertilisation and Embryology Act 1990 (meaning of "father") there shall be inserted-
 
 
    "(5A) If-
 
 
    (a) a child has been carried by a woman as the result of the placing in her of an embryo or of sperm and eggs or her artificial insemination,
 
    (b) the creation of the embryo carried by her was brought about by using the sperm of a man after his death, or the creation of the embryo was brought about using the sperm of a man before his death but the embryo was placed in the woman after his death,
 
    (c) the woman was a party to a marriage with the man immediately before his death,
 
    (d) the woman has elected in writing within the period of 42 days beginning with the day on which the child was born for the man to be treated for the purpose mentioned in subsection (5E) below as the father of the child, and
 
    (e) no-one else is to be treated as the father of the child by virtue of subsection (2) or (3) above or (5C) or (5D) below or by virtue of adoption or the child being treated as mentioned in paragraph (a) or (b) of subsection (5) above,
  then the man shall be treated for the purpose mentioned in subsection (5E) below as the father of the child unless it is shown that he did not consent to being so treated.
 
      (5B) If-
 
 
    (a) a child has been carried by a woman as the result of the placing in her of an embryo or of sperm and eggs or her artificial insemination,
 
    (b) the creation of the embryo carried by her was brought about by using the sperm of a man after his death, or the creation of the embryo was brought about using the sperm of a man before his death but the embryo was placed in the woman after his death,
 
    (c) the woman was not a party to a marriage with the man immediately before his death but treatment services were being provided for the woman and the man together before his death either by a person to whom a licence applies or outside the United Kingdom,
 
    (d) the woman has elected in writing within the period of 42 days beginning with the day on which the child was born for the man to be treated for the purpose mentioned in subsection (5E) below as the father of the child, and
 
    (e) no-one else is to be treated as the father of the child by virtue of subsection (2) or (3) above or (5C) or (5D) below or by virtue of adoption or the child being treated as mentioned in paragraph (a) or (b) of subsection (5) above,
  then the man shall be treated for the purpose mentioned in subsection (5E) below as the father of the child unless it is shown that he did not consent to being so treated.
 
      (5C) If-
 
 
    (a) a child has been carried by a woman as the result of the placing in her of an embryo,
 
    (b) the embryo was created at a time when the woman 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 the woman,
 
    (e) the woman has elected in writing within the period of 42 days beginning with the day on which the child was born for the other party to the marriage to be treated for the purpose mentioned in subsection (5E) below as the father of the child, and
 
    (f) no-one else is to be treated as the father of the child by virtue of subsection (2), (3), (5A) or (5B) above or by virtue of adoption or the child being treated as mentioned in paragraph (a) or (b) of subsection (5) above,
  then the other party to the marriage shall be treated for the purpose mentioned in subsection (5E) below as the father of the child unless it is shown that he did not consent to being so treated.
 
      (5D) If-
 
 
    (a) a child has been carried by a woman as the result of the placing in her of an embryo,
 
    (b) the embryo was not created at a time when the woman was a party to a marriage but was created in the course of treatment services provided for the woman and a man together by a person to whom a licence applies,
 
    (c) the creation of the embryo was not brought about with the sperm of that man,
 
    (d) the man died before the placing of the embryo in the woman,
 
    (e) the woman has elected in writing within the period of 42 days beginning with the day on which the child was born for the man to be treated for the purpose mentioned in subsection (5E) below as the father of the child, and
 
    (f) no-one else is to be treated as the father of the child by virtue of subsection (2), (3), (5A) or (5B) above or by virtue of adoption or the child being treated as mentioned in paragraph (a) or (b) of subsection (5) above,
  then the man shall be treated for the purpose mentioned in subsection (5E) below as the father of the child unless it is shown that he did not consent to being so treated.
 
      (5E) The purpose referred to in subsections (5A) to (5D) above is the purpose of enabling the man's particulars to be entered as the particulars of the child's father in (as the case may be) a register of live-births or still-births kept under the Births and Deaths Registration Act 1953 or the Births and Deaths Registration (Northern Ireland) Order 1976 or a register of births or still-births kept under the Registration of Births, Deaths and Marriages (Scotland) Act 1965."
 
      (2) After section 29(3) of the Act of 1990 (effect of sections 27 and 28) there shall be inserted-
 
 
    "(3A) Subsections (1) to (3) above do not apply in relation to the treatment in law of a deceased man in a case to which section 28(5A), (5B), (5C) or (5D) applies.
 
      (3B) Where subsection (5A), (5B), (5C) or (5D) of section 28 of this Act applies, the deceased man-
 
 
    (a) is to be treated in law as the father of the child for the purpose referred to in that subsection, but
 
    (b) is to be treated in law as not being the father of the child for any other purpose.
      (3C) Where subsection (3B) above has effect, references to any relationship between two people in any enactment, deed or other instrument or document (whenever passed or made) are to be read accordingly."
 
Consequential and retrospective provision.     2. - (1) The Schedule (which contains consequential amendments) shall have effect.
 
      (2) This Act shall apply to any case where the sperm of a man, or any embryo the creation of which was brought about with the sperm of a man, was used on or after 1st August 1991.
 
      (3) Where the child concerned was born before the coming into force of this Act, section 28(5A) or (as the case may be) (5B) of the Human Fertilisation and Embryology Act 1990 shall have effect as if for paragraph (d) there were substituted-
 
 
    "(d) the woman has elected in writing within the period of three months beginning with the coming into force of this Act for the man to be treated for the purpose mentioned in subsection (5E) below as the father of the child,".
      (4) Where the child concerned was born before the coming into force of this Act, section 28(5C) of the Act of 1990 shall have effect as if for paragraph (e) there were substituted-
 
 
    "(e) the woman has elected in writing within the period of three months beginning with the coming into force of this Act for the other party to the marriage to be treated for the purpose mentioned in subsection (5E) below as the father of the child,".
      (5) Where the child concerned was born before the coming into force of this Act, section 28(5D) of the Act of 1990 shall have effect as if for paragraph (e) there were substituted-
 
 
    "(e) the woman has elected in writing within the period of three months beginning with the coming into force of this Act for the man to be treated for the purpose mentioned in subsection (5E) below as the father of the child,".
Short title, commencement and extent.     3. - (1) This Act may be cited as the Human Fertilisation and Embryology (Deceased Fathers) Act 2001.
 
      (2) This Act shall come into force on such day as the Secretary of State may by order appoint.
 
      (3) An order under subsection (2)-
 
 
    (a) shall be made by statutory instrument; and
 
    (b) may make such transitory, transitional or saving provision as the Secretary of State considers appropriate.
      (4) Any amendment by the Schedule of an enactment has the same extent as the enactment amended.
 
      (5) Subject to that, this Act extends to England and Wales, Scotland and Northern Ireland.
 
   
 
 
 


 
 
S C H E D U L E S
  CONSEQUENTIAL AMENDMENTS
 
Births and Deaths Registration Act 1953 (c.20)
     1. After section 9(4) of the Births and Deaths Registration Act 1953 (giving of information to a person other than the registrar) there shall be inserted-
 
 
    "(4A) A request made under section 10ZA of this Act may be included in a declaration under subsection (1) of this section and the documents required by that section to be produced shall be produced to the officer in whose presence the declaration is made and sent by him with the declaration to the registrar."
 
     2. In section 10(1) of that Act (registration of father where parents not married at time of birth) after "Act", where it first appears, there shall be inserted "and subject to section 10ZA of this Act".
 
     3. After section 10 of that Act there shall be inserted-
 
 
"Registration of father by virtue of certain provisions of the Human Fertilisation and Embryology Act 1990.     10ZA. - (1) Notwithstanding anything in the foregoing provisions of this Act, the registrar shall not, except at the request of the mother and on production of the relevant documents, enter in the register as the father of a child the name of a man who is to be treated for that purpose as the father of the child by virtue of section 28(5A), (5B), (5C) or (5D) of the Human Fertilisation and Embryology Act 1990 (circumstances in which man to be treated as father of child for purposes of registration of birth where fertility treatment undertaken after his death).
 
    (2) In this section "the relevant documents" means-
 
 
    (a) the election mentioned in section 28(5A), (5B), (5C) or (as the case may be) (5D) of the Act of 1990;
 
    (b) a certificate of a registered medical practitioner as to the medical facts concerned; and
 
    (c) such other documentary evidence (if any) as the registrar considers appropriate."
     4. After "or" at the end of section 10A(1)(f) of that Act (re-registration where parents not married) there shall be inserted-
 
 
    "(ff) in a case of a man who is to be treated as the father of the child by virtue of section 28(5A), (5B), (5C) or (5D) of the Human Fertilisation and Embryology Act 1990, at the request of the mother and on production of the relevant documents (within the meaning of section 10ZA of this Act); or".
     5. In section 10A(2)(c) of that Act (father also to sign register on re-registration) for "(d) to (g)" there shall be substituted "(d) to (f) or (g)".
 
 
Registration of Births, Deaths and Marriages (Scotland) Act 1965 (c.49)
     6. In section 18 of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 (births of children born out of wedlock) in subsection (1) at the beginning there shall be inserted "Subject to section 18ZA of this Act".
 
     7. After section 18 of that Act there shall be inserted-
 
 
"Registration of father by virtue of certain provisions of the Human Fertilisation and Embryology Act 1990.     18ZA. - (1) The registrar shall not, except at the request of the mother and on production of the relevant documents, enter in the register as the father of a child the name of a man who is to be treated for that purpose as the father of the child by virtue of section 28(5A), (5B), (5C) or (5D) of the Human Fertilisation and Embryology Act 1990 (circumstances in which man to be treated as father of child for purposes of registration of birth where fertility treatment undertaken after his death).
 
    (2) In this section "the relevant documents" means-
 
 
    (a) the election mentioned in section 28(5A), (5B), (5C) or (as the case may be) (5D) of the Act of 1990;
 
    (b) a certificate of a registered medical practitioner as to the medical facts concerned; and
 
    (c) such other documentary evidence (if any) as the registrar considers appropriate."
 
Adoption Act 1976 (c.36)
     8. In section 15(3)(a) of the Adoption Act 1976 (adoption by one person where no other parent) after "1990" there shall be inserted "(disregarding subsections (5A) to (5E) of that section)".
 
 
Births and Deaths Registration (Northern Ireland) Order 1976 (S.I. 1976/1041 (N.I.14))
     9. In Article 14(1) of the Births and Deaths Registration (Northern Ireland) Order 1976 (registration of father where parents not married) at the end there shall be inserted "and subject to Article 14A".
 
     10. After Article 14 of that Order there shall be inserted-
 
 

"Registration of father by virtue of certain provisions of the Human Fertilisation and Embryology Act 1990
     14A. - (1) A registrar shall not enter as the father of a child the name of any person who is to be treated as the father of the child by virtue of section 28(5A), (5B), (5C) or (5D) of the Human Fertilisation and Embryology Act 1990 (circumstances in which man to be treated as father of child for purposes of registration of birth where fertility treatment undertaken after his death) unless the mother requests him to do so and produces the relevant documents.
 
      (2) In this Article "the relevant documents" means-
 
 
    (a) the election mentioned in section 28(5A), (5B), (5C) or (as the case may be) (5D) of the Act of 1990;
 
    (b) a certificate of a registered medical practitioner as to the medical facts concerned; and
 
    (c) such other documentary evidence (if any) as the registrar considers appropriate."
     11. In Article 18 of that Order (re-registration of births), at the end of paragraph (1) there shall be inserted-
 
 
    "(c) in the case of a person who is to be treated as the father of the child by virtue of section 28(5A), (5B), (5C) or (5D) of the Human Fertilisation and Embryology Act 1990, the mother requests him to do so and produces the relevant documents (within the meaning of Article 14A(2))".
 
Adoption (Scotland) Act 1978 (c.28)
     12. In section 15(3)(a) of the Adoption (Scotland) Act 1978 (adoption by one person where no other parent) after "1990" there shall be inserted "(disregarding subsections (5A) to (5E) of that section)".
 
 
Adoption (Northern Ireland) Order 1987 (S.I. 1987/2203 (N.I.22))
     13. In Article 15(3)(a) of the Adoption (Northern Ireland) Order 1987 (adoption by one person where no other parent) after "1990" there shall be inserted "(disregarding subsections (5A) to (5E) of that section)".
 
 
Human Fertilisation and Embryology Act 1990 (c.37)
     14. In section 28 of the Human Fertilisation and Embryology Act 1990, in subsection (1) (children to whom section 28 applies), at the beginning, there shall be inserted "Subject to subsections (5A) to (5E) below".
 
     15. In section 28(6) of that Act (man whose sperm was used after his death not to be treated as father of child) after "not" there shall be inserted ", subject to subsections (5A) and (5B) above,".
 
     16. In section 28(7) of that Act (meaning of references to the parties to a marriage) after "subsection (2) above" there shall be inserted "and subsections (5A) to (5D) above".
 
     17. In section 29(4) of that Act (succession to dignities etc) after "(4)" there shall be inserted "or (5A) to (5E)".
 
 

 
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