The Act of Parliament That Applies to Assisted Reproduction and Legal Reproduction - Essay Example

Family Law affiliation Introduction In this essay, I will look at the act of parliament that applies to assisted reproduction and legal Reproduction in looking at whether it is rigid and is able to protect the rights of parties involved including those of the child. In addressing this issue, I will look at the legal provisions of the HFE 1991 Act and the issue that the court looks at when giving out an order for parental responsibility. This essay will have addressed how the law, in this case, has developed to meet scientific developments and social concerns and looking how its fit in protecting rights of parties involved. Analysis The distinction between who is a parent and those that have parental responsibility is different. A parent refers to a man whose sperm and a woman’s eggs ultimately produce a child. Step and adoptive parents that do not have a biological link towards the child, however, bring up some children and maybe considered as legal parents under the law. Men who are biological fathers are not the legal parent’s fathers, and some men who are not biological fathers can be considered as legal fathers.1 In B v, United Kingdom2 the applicant was considered as the natural parent where the applicants provided gametes that produce a child. Not all cases natural parents are considered as legal parents of a child. In some cases, not all natural parents can be a legal parent, and this depends on whether the parent in such a case has the required parental responsibility. The Human Fertilization and Embryology Act of 1990 that deals with assisted reproduction cases3 allows some men who are not genetically parents to become legal parents of children and allows fathers who are not genetic fathers to become legal fathers. The statute provides for situations where a man who is not the genetic father to be the legal father of a child. The act states that a married woman can receive assisted reproductive treatment at a clinic that has a license, and thereafter the husband becomes the father of the child where he must have had previous consent of such a situation. This also applies where a sperm has been used and does not become the genetic father where the sperm donor does not become the father of the born child. This provision applies to treatments that are carried out in licensed clinics. Such provisions of the Act apply when a woman enters a civil union with another woman. The Act of 2008 illustrates that a man can become the father of someone they are not genetically related following assisted reproductive services in licensed clinics with consents that mean agreed parenthood conditions must be established and satisfied. Since the Human Fertilization and Embryology Authority (Disclosure of Donor Information) Regulations 2004, it stipulates that a child that is born after the regulations came into effect must ascertain who the donor father was and give information about him conclusively.4 The Children’s Act of 1989 parental responsibility establishes that a parent of a child by law has all duties, rights, powers, and responsibilities in relation to a child and the authority and his property.5 It states that more than one person can have a parental responsibility where a course of action can be taken under the act. If a person tries to remove a child from UK with regards to consent to child adoption and decides about children education and changing the surname of a child and any medical treatment required of the child then the Children Act can be used to decide such cases in determining who has parental responsibility. This means that parental responsibility cannot be terminated when someone else acquires it.6 Other people may have parental responsibility even without legally applying for it due to statutory provisions where it provides that they have it. A good example is that all mothers have it towards their children due to their commitment to the child by being pregnant, and they have agreed to be involved in the care of the child even after birth. In addition, fathers that are married to the mother of a child also get the automatic responsibility of such a child after birth. Unmarried fathers do not automatically get legal parentage where they must apply in according to provisions of the Child Act to be able to acquire parental care. Such fathers can acquire such orders if they undertake certain steps.7 If they are registered with the child’s mother on the birth certificate, they can acquire parental responsibility. They can also acquire parental responsibility by agreement with the mother of the child. Both parents must register the agreement at the Principal Registry of the Family Division and must sign it in front of a witness. In Re X (Parental Responsibility Agreement Children in Care)8 it was established that the local authority do not have power to prevent the mother of a child to have the parental responsibility with the father of a child .This is due to the aspect of the right to respect of family life that is guaranteed under the constitution under Article 8. An unmarried father can acquire parental responsibility by the application of a court order.The court considers the child welfare when deciding whether to give the unmarried father the legal parentage responsibility. In the case of Re H (Minors) (Local Authority: Parental Rights)9 the court judge, Balcombe LJ stipulated that there are three factors that the court must decided when issuing parental care. The court looks at whether they have any commitment to the child. Secondly, the court looks at whether there exists an attachment between the child and the father. Lastly, the court considers the reasons or intention following the application for such an order. In Re S (Parental Responsibility)10 it was stated that although unmarried father unreliability of giving money and conviction of possession of obscene pedophilic literature the court still granted him parental responsibility due to commitment shown by the father and attachment to the child. In M v M(Parental Responsibility)11 the court established that although the father had shown commitment and attachment to the child he could not acquire parental responsibility due to his mental condition where he lacked the capacity to carry our his responsibilities, duties and rights that are required for parental responsibility. Someone with legal parentage cannot surrender and transfer their duties and responsibility of parentage but can be able to arrange for it to be met by one or more persons acting on their behalf. This includes another person who has parental responsibility, therefore, its seems that it is lawfully allowed to place a child with someone else acting in loco that is with parental responsibility.12 A person with parental responsibility cannot be able to escape liability in civil and criminal law by them delegating responsibility to another party. The onus is always on the parents to create effective arrangements for supporting their children. Parental responsibility is not lost when the children is in the care of the local authority and allows such responsibility continues after divorce, separation of parents and dissolution of a civil union.13 The Legal partnership is terminated when the child reaches the age of majority and adoption that involve the transfer of parental responsibility to adopters that when it become terminated. It may also be terminated by the Children’s Act through a court order.14 The Children Act 1989 stipulates that unmarried father that has parental responsibility under section 4(1) can also be terminated by a court order. In Re P (Terminating Parental Responsibility)15 the court stated that the welfare of a child is considered when terminating such parental responsibility of the father.The unmarried mother cannot be used as a weapon in terminating parental responsibility of the unmarried father. In B v United Kingdom16 the facts of the case that the child was born out of wedlock the applicant was unmarried father had regular contact with the child who had no parental responsibility order given by the court. The child was under the care of the mother.The father applied for the order, and the mother removed the child from England to Italy. The court observed that the unmarried father rights were no breached since the applicant did not have the parental responsibility. The applicant requested the Court using the Hague Convention on the Civil Aspects of International Child Abduction 1980. The court later dismissed it because the father did not have the formal rights of custody established under English law. If the applicant had applied an order for the declaration of wardship, it would have enabled him to seek an order for the child to return to England. However, the court rejected it since the child had lived with the mother, and it would be inconvenient for the mother to take the child back so that the father would be able to visit the child. The applicant forwarded the case to the European Convention on Human Rights under Article 14 in conjunction with Article 8 of European Court on Human Rights where unmarried fathers are discriminated when protection is given in relationships with their children as compared to protection given to married fathers. In Inze v Austria17 it was held that there was no breach of Article 14 where there lacks an objective and reasonable facts for the different cases, therefore, the court held that was justification for the different treatment between married and unmarried fathers. The application was declared as unacceptable due to lack of objective and reasonable justification between married and unmarried fathers. The court also stated that the application failed due to lack of parental responsibility. It is clear that married fathers have different responsibilities as compared to unmarried fathers. In UK, many couples are falsely thought as unmarried fathers who have parental responsibility.18 When child requires medical attention as an operation and the doctor lacks the knowledge of the law and inquiries about the consent of unmarried father that lacks the parental responsibility it is considered that the medical practitioner was acting unlawfully without any authorization. The government has the duty of letting unmarried fathers know and understand their positions that are legally different from that of married fathers. In English law, the man can prove whether they had parental responsibility by proving that he has a certificate of marriage with the child’s mothers, the birth certificate of the child and parental responsibility agreement.19 If unmarried fathers have parental responsibility like married fathers, it will become hard to know whether someone is claiming to have it was the biological father of the child unless proven otherwise. The UK government aims to make unmarried fathers be able to fulfill their parental responsibilities by promoting the welfare of the children. It makes it compulsory for such fathers to be named in the birth certificate together with the mother. This new regulation is stipulated in Schedule 6 of the Welfare Reform Act of 2009.20 UK have laws that allow a woman where they are able to procreate to avail herself for artificial procreation.21 The embryo under the law is considered as an object and logic of ownership where the consent is required by both donors. Under UK law, the embryo is formed for purposes other than procreation and can be used for advances in treatment of infertility The Human Fertilization and Embryology Act of 2008 This law sets out the legal parents of a child born after sperm donation or after artificial insemination or different fertility treatment.When it comes to opposite sex married couples and unmarried couples there seems to be no change that is substantive with the current law and the old law when it was under the Human Fertilization and Embryology Act of 1991. Generally, the mother who gives the birth is considered the legal parent.The legal father is the one who is considered as the biological father of the child that depends on its insemination was undertaken informally during a private arrangement and at a licensed clinic in UK. Consent from the partner for insemination is always a key factor. Legal paternity is evaluated according to section 35 and section 42 of the 2008 Act. If the conditions are fulfilled then, the claimants are considered as the biological father of the child without any legal connection being required.22 For a mother in an opposite-sex couple the following conditions must be established under the Act. The mother must have been inseminated artificially and be married during and at the time of the procedure. The mother’s husband must have consented to the process where the burden is placed on the person claiming that they lacked consent. Mothers who are in the same sex couple establish that the law is the same for married couples. Section 42 conditions must be met where if the couples are heterosexual then the mother must have been artificially inseminated in the process must have been on or after 6 April 2009. The mother must also be in a civil union at the time of insemination and consent must be established.23 When such conditions are established the mothers partners is recognized as a parent, and their name can appear on the child’s birth certificate. These rules are strict where if the arrangements do not fall under this condition the mother can go to the Child Support Agency for maintenance. The child’s biological parent has the right to request the court to spend time with the child or agree to an adoption. Licensed clinics must carry out procedures when they are licensed by the Human Fertilization and Embryology Authority after consent for the partner and the sperm donor signed the required forms for a sperm donor accordingly.24 How Fit the Laws Are Family law and parenthood law in its current form may make sense for the majority of people, but it does not deal with the fundamental question of what makes a parent and why. In UK, adoption certificates are used as gender-neutral terms where parent represents mother and father. The Human Fertilization and Embryology Act of 2008 have however changed this where it permits two women to be registered as legal parents of a child since birth.25 The biological mother is recorded as the mother in the certificate therefore it seems only women who give birth are recognized as legal mothers and the other woman is recognized as the parent. This is regardless whether she is the genetic mother of the child. The legislation provides for conferral of legal fatherhood to the husband of the mother and any male partner who donated a sperm in conceiving a child. The current law has mixed messages, but it is clear that the issue of assisted reproduction the laws have reserved the right of law to describe who is entitled to parental status. This follows the interest of legal certainty, and whether the law is deemed fit for its purpose it terms of being fair.26 Transgender issues highlight existing problems where sometimes the law proves inadequate. If emphatic grounding is determined by motherhood during gestation and denial of legal motherhood is based on genetic linkage therefore means that a woman who gives her egg to another woman who has consent of surrogacy cannot claim parental status due to lack of the genetic link.27 The woman can only apply for the order for legal parenthood to be given to her by transfer from the court. This provides protection for a surrogate parent who has a change of mind in foregoing her parental responsibility after birth, and this leaves the surrogate at a difficult legal place if the parents also change their mind. Couples are the only ones who can apply for an order therefore if the genetic mother separate before birth the law provides that she can only adopt her genetic child. Single parents are allowed to adopt, but it is not a protected status under the law for anti- discrimination and equality law.28 This means that if a genetic mother has a right to adopt a child it cannot be always being guaranteed under the law in UK. Issues of Transgender and surrogacy even if there are few in UK they raise many questions about the laws relating to parenthood and gender. The 2008 Act there is a rolling out in the heterosexual model in parenthood that incorporates same-sex female parenthood. It is good to note that it prohibits female genetic parenthood where it limits it in two ways.29 Even though genetic connections are for formal sperm and egg donors, the law does not seek silence the connections from male genetic come in areas beyond donation.30 This shows the gendering by the law by the biological contribution of reproduction through the genetic material. It also acknowledges genetic motherhood that opens claims to legal parenthood, in recognizing non- genetic fathers in basis of their relationship with their mother.This means that if two women are allowed to claim parenthood based on genetic toes and gestational ties it may raise claim by a third claim of parenthood. When two men apply for a parenting order they are able to avail the status provisions from when the child is born and this brings problems of not recognizing the mother as the legal parent or recognizing their parents as the legal parents after birth.31 The Human Fertilization and Embryology Act of 2008 that is the same as of 1990 seem complicated in terms of giving court ideas of what a family is and how it should like.32 The law does not tackle questions of why the law should confer parental status and whether it should be, gendered.It establishes traditional legal lines that relate to marriage and genetic ties that do not assimilate family forms that emerge from assisted reproduction practices that change and confuse the understanding of gender roles and genetic kinship with sexuality. This means that a child after birth cannot have more than two legal parents and the parents must play different roles meaning that there must be one mother and one father but not one mother and one father who are the mother. Same-sex and other new types of parenthood have not been recognized and are assimilated in the traditional models of a family. These laws are rigid in the sense that the reproductive scenario cannot and don’t fit with such frameworks.There lacks legal discretion in court pleas in resolving such difficult uncertainties that relate to parental status in the legal arena. The laws on family law can be considered as traditionally flexible as they have a stereotypic view of a family as involving a mother and father. This means that the child parentage is determined by the genetic link between the parents. However the circumstances where the father may be unmarried. The law can be said fully to protect rights of parties involved especially those of the children. The court uses the objectivity and reasonable test in determining cases in court. The law guides in situations where someone is given parental responsibility.It stipulates that if a father shows commitment to the child they may get an order of parentage responsibility. However, the main issue that the law looks at that is enforced by courts is the welfare of children.33 This means that the court cannot issue an order of legal parentage to a party who will not be able to fulfill their responsibilities, rights, duties, and authorities towards a child effectively. This clearly shows that the child is protected and their rights are fully respected where if the unmarried fathers cannot establish that they can take care of the child by showing commitment and connection with the child the court dismissed the order out rightly. Development of the Law The HFFA of 1991 resulted from a long process of development of IVF regulation in United Kingdom. Regulation in the 1980s saw the development of the Warnock Committee Inquiry that considered the recent and development potentials in the field of medicine and science that related to human fertilization and embryology. UK law is keeping up with the rapid growth in the reproductive technologies where its legislation is seen as counterproductive since it is slow and does not adapt to interests of the public. Laws should be set up a process that is visible and build a commission that should respond to the society on current available reproductive systems and laws. Provisions of the HFE Act of 1990 are reading it in the context of other international and national legislations in medical research and practice. This act had a long history however it should be tested for its compatibility with rights and freedoms provided under the European Convention on Human Rights.34 In consideration of the challenges of the Act, the development of such new technologies for treatment and research and its societal and ethical implications must be analyzed.The act provides for storage of quality embryos that are sometimes used in research. The act, however, should also cover the source for eggs that do not mature at the expected time by the clinic or situations where a sperm does not fully fertilize. These are thrown away and instead of doing so, they might be used as research. When it comes to reproductive cloning although it is not wrong there exists bad reasons for using it. There exists a technical reason that is good where like experimental animal studies its success has remained at 1% where it shows high defects after a child is born. It establishes the issue of increased problems associated with techniques for human cloning. The licensing system promotes adequate people with facilities to offer genetic pre-implantation tests for patients.35 Conditions set under such procedures are regularly reviewed. Research must be done to develop alternative procedures that do not destroy the embryo in access that develop diagnostic techniques that involve gametes that are spermatozoa and ova. There is always a psychological interest in knowing the identity of the father where legislation is clear about past donors having the right to privacy unless there is immediate damage to a person. Conclusion The law relating to assisted reproduction and legal parentage is provided under the HFE Act of 1991 that is also an act of 2008.It provides that a biological parent can lack the parental responsibility and have it. It also states that a father that is not the biological parent of a child can be given parental responsibility. The court looks at the connection and commitment to the father to the child and applies the objective and reasonable test in before issuing an order of legal parentage. The court is keen in ensuring the welfare of the child, and, therefore, this law protects the rights of the child fully in according to the European Convention on Human Rights. The law in UK can be said to be rigid where it hasn’t fully recognized all situations as to parentage especially when it comes to cases where both parents are both women it doesn’t clearly outline the procedures. The law raises allot of questions when it comes to questions of surrogacy and transgender issues where it does not fully guard such rights of the individual. However, the law on assisted reproduction and legal parentage has continued to protect the rights of the child and parties involved including both married and unmarried fathers in establishing whether they have the responsibilities, rights, duties, and authorization of parental responsibility. It is clear that the courts take into consideration the welfare of a child when it comes to legal parentage and matters of offering orders to both married after and unmarried fathers parental responsibility. The law suggests that for the biological mother and father they are deemed to have the parental responsibility after the birth of a child as they had agreed to take care of the child during pregnancy. Therefore, the court looks objectively at every case with its facts to avoid bias against unmarried fathers who might claim that the law protects married fathers more, but it is good to note that married fathers have a greater responsibility. 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Are You Still My Mother?: Interstate Recognition of Adoptions by Gays and Lesbians. American University Law Review, 58(1). Read More