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Human Fertilisation And Embryology (Deceased Fathers) Bill


 

These notes refer to the Human Fertilisation and Embryology (Deceased Fathers) Bill as introduced in the House of Commons on 17th January 2001[Bill 24]

Human Fertilisation And Embryology (Deceased Fathers) Bill


EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Human Fertilisation and Embryology (Deceased Fathers) Bill 2001 as introduced in the House of Commons on 17th January 2001. They have been prepared by the Department of Health with the consent of Mr Tony Clarke MP, the Member in charge of the Bill, in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2.     These notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill, so where a section or part of a section does not seem to require any explanation or comment, none is given.

BACKGROUND

3.     This Bill follows the case of Diane Blood and other mothers in a similar position to her who have conceived children after the death of their husbands or partners using assisted conception techniques (commonly called fertility treatment). These mothers have been unable to register their deceased husband or partner as the father on the child's birth entry as a result of the provisions of section 28(6) of the Human Fertilisation and Embryology Act 1990 ("the 1990 Act"). The Bill implements the recommendation of Professor Sheila McLean, Professor of Law and Ethics in Medicine at the University of Glasgow, made in her report "Review of the Common Law Provisions relating to the Removal of Gametes and of the Consent Provisions of the Human Fertilisation and Embryology Act 1990" (July 1998) that children born to these mothers should have a symbolic acknowledgement of their father on their birth certificates.

4.     In the Department of Health's view the provisions contained in the Bill are compatible with the European Convention on Human Rights.

THE BILL

5.     1. The Bill allows a man to be registered as the father of a child conceived after his death using his sperm or an embryo created using his sperm either before or after his death. This registration will not confer upon the child any legal status or rights as a consequence of that registration. The Bill also enables a man to be registered as the father of a child conceived after his death using an embryo created using donor sperm before his death, once again, without conferring upon the child any legal status or rights as a consequence of that registration.

6.     The current position under section 28(6) of the 1990 Act is that where the sperm of a man who had given consent in accordance with Schedule 3 paragraph 5 to the Act for his gametes to be used for a particular purpose was used for that purpose, or the sperm of a man, or any embryo the creation of which was brought about with his sperm, was used after his death, he is not to be treated in law as the father of the child for any purpose. The position was adopted in the legislation to ensure that a child born in these circumstances does not have any legal status or rights, the effect of which would be to prevent the winding-up of a man's estate.

COMMENTARY ON CLAUSES

Clause 1: Certain deceased men to be registered as fathers

7.     This clause consists of two subsections which contain the main provisions of the Bill.

8.     Subsection (1) inserts new subsections (5A), (5B), (5C), (5D) and (5E) after section 28(5) of the 1990 Act. These subsections set out the circumstances in which certain deceased men may be registered as the father on a child's birth certificate.

9.     New subsection (5A) provides that in the case of a married couple, where a child is conceived after the husband's death using either his sperm or an embryo created before his death using his sperm, the woman may elect within a period of 42 days beginning with the day on which the child was born that her late husband is to be treated as the father for the purpose mentioned in new subsection (5E).

10.     This purpose is that of enabling his particulars to be entered as the particulars of the child's father in 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. An election by the woman will be effective except where some-one else is to be treated as the father of the child by virtue of section 28(2) or (3) of the 1990 Act or new subsection (5C) or (5D) or by virtue of adoption or the child being treated as mentioned in section 28(5)(a) or (b) of the 1990 Act and unless it is shown that the husband did not consent to being so treated.

11 .     New subsection (5B) provides that in the case of an unmarried couple, where a child is conceived after the partner's death using either his sperm or an embryo created before his death using his sperm, the woman may elect within a period of 42 days beginning with the day on which the child was born that her late partner is to be treated as the father for the purpose mentioned in new subsection (5E). Subsection (5B) applies where 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. The circumstances in which an election by the woman will be effective are the same as those set out in paragraph 10 above in relation to the new subsection (5A) although the reference to the husband should be read as a reference to the partner.

12.     New subsection (5C) provides that in the case of a married couple, where a child is conceived after the husband's death using an embryo created with donor sperm before his death, the woman may elect within a period of 42 days beginning with the day on which the child was born that her late husband is to be treated as the father for the purpose mentioned in new subsection (5E). An election by the woman will be effective except where some-one else is to be treated as the father of the child by virtue of section 28(2) or (3) of the 1990 Act or new subsection (5A) or (5B) or by virtue of adoption or the child being treated as mentioned in section 28(5)(a) or (b) of the 1990 Act and unless it is shown that the husband did not consent to being so treated.

13.     New subsection (5D) provides that in the case of an unmarried couple, where a child is conceived after the partner's death using an embryo created with donor sperm in the course of treatment services provided for the woman and the man together by a person to whom a licence applies, the woman may elect within a period of 42 days beginning with the day on which the child was born that her late partner is to be treated as the father for the purpose mentioned in new subsection (5E). The circumstances in which an election by the woman will be effective are the same as those set out in paragraph 12 above in relation to the new subsection (5C) although the reference to the husband should be read as a reference to the partner.

14.     Subsection (2) of clause 1 inserts new subsections (3A) to (3C) after section 29(3) of the 1990 Act.

15.     New subsection (3A) disapplies section 29(1) to (3) in relation to the treatment in law of a deceased man in a case to which the new section 28(5A), (5B), (5C) or (5D) applies.

16.     New subsection (3B) provides that where the new section 28(5A), (5B), (5C) or (5D) applies, the deceased man is to be treated in law as the father of the child for the purpose referred to in the new section 28(5E), but is to be treated in law as not being the father of the child for any other purpose.

17.     New subsection (3C) provides that where subsection (3B) 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.

Clause 2: Consequential and Retrospective Provision

18.     Subsection (1) of clause 2 of the Bill provides that the Schedule (which contains consequential amendments) has effect.

19.     Subsection (2) ensures that the Bill will apply to existing, as well as future, cases. The result is that the conditions mentioned in the new section 28(5A), (5B), (5C) or (5D) can be satisfied in any case where the sperm or embryo in question was used on or after 1st August 1991.

20.     Subsections (3) to (5) provide that, where a child was born before the coming into force of the Bill, the mother may elect in writing within a period of three months beginning with the coming into force of the Bill for her deceased husband or partner to be treated as the father of the child for the purpose mentioned in the new section 28(5E). This will give women who wish to take advantage of the provisions of the Bill time to gather evidence in support of their election in circumstances where their treatment may have taken place many years ago.

Clause 3: Short Title, Commencement and Extent

21.     Subsection (1) of this clause gives the short title of the Bill.

22.     Subsection (2) provides that the Bill will come into force on such day as the Secretary of State for Health may by order appoint. Under subsection (3) such an order will be made by statutory instrument and may make such transitory, transitional or saving provision as the Secretary of State considers appropriate.

23.     Subsection (4) provides that any amendments made by the Schedule to an enactment have the same extent as the enactment amended. Subject to this, by subsection (5), the Bill extends to England and Wales, Scotland and Northern Ireland.

Schedule

24.     Paragraph 1 of the Schedule to the Bill inserts a new subsection (4A) after section 9(4) of the Births and Deaths Registration Act 1953 ("the 1953 Act"). This new section enables the woman, where she makes a request under new section 10ZA of that Act (see paragraph 26 below), to include that request in a declaration under section 9(1). Where this happens the documents required by that section to be produced shall be produced to the officer in whose presence the declaration is made and will be sent by him with the declaration to the registrar.

25.     Paragraph 2 of the Schedule makes a consequential amendment to section 10(1) of the 1953 Act.

26.     Paragraph 3 inserts a new section 10ZA after section 10 of the 1953 Act to allow the registrar to 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 the new section 28(5A), (5B), (5C) or (5D) of the 1990 Act. Before the entry can be made the mother must produce to the registrar the relevant documents set out in new section 10ZA(2). These include the written election mentioned in the new section 28(5A), (5B), (5C) or (5D) and a certificate of a registered medical practitioner as to the medical facts concerned.

27.     Paragraph 4 of the Schedule inserts a new section 10A(1)(ff) into the 1953 Act. This provides for re-registration where no person has been registered as the father of the child. The effect of this is that the registrar shall re-register the birth so as to show a person as the father in the case of a man who is to be treated as the father of the child by virtue of the new section 28(5A), (5B), (5C) or (5D) of the 1990 Act, at the request of the mother and on production of the relevant documents (see paragraph 26 above).

28.     Paragraph 5 of the Schedule makes a consequential amendment to section 10A(2)(c) of the 1953 Act.

29.     Paragraphs 6 and 7 insert equivalent provisions to those mentioned in paragraph 26 above into Scottish legislation.

30.     Paragraph 8 inserts a minor consequential amendment in section 15(3)(a) of the Adoption Act 1976.

31.     Paragraphs 9, 10 and 11 insert equivalent provisions to those mentioned in paragraphs 26 and 27 above in Northern Ireland legislation.

32.     Paragraphs 12 and 13 insert equivalent provisions in Scottish and Northern Ireland legislation to those mentioned in paragraph 30 above.

33.     Paragraphs 14, 15, 16 and 17 make necessary minor consequential amendments to the 1990 Act.

FINANCIAL EFFECTS OF THE BILL

34.     None.

EFFECTS OF THE BILL ON PUBLIC SERVICE MANPOWER

35.     It is believed that the Bill will give rise to up to 30 registrations or re-registrations of births and up to 10 new registrations each year. Consequently, it will have no significant staffing implications.

REGULATORY APPRAISAL

36.     There will be no regulatory impact arising from this Bill.

 
 
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Prepared: 20 March 2001