PollenTree

Human Fertilisation and Embryology Act 2008 (Surrogacy)

This Act will amend the law on assisted reproduction which includes, IVF, sperm donation and surrogacy.

Set out below are some of the major changes which will be made to the law in this area:-

• Certain types of embryos which contain both human and animal DNA (known as “human admixed embryos”) will be permitted for medical research but a licence is needed to create such embryos. This section is expected to come into force in October 2009.

• Increases the maximum storage time for embryos to a ten year limit (without any conditions). This brings it into line with the storage of donated eggs and sperm. This section is expected to come into force in October 2009.

• Sex selection (selecting embryos to implant on the basis of their sex) is permitted but only for medical reasons and only for conditions which are linked to sex chromosomes such as Duchenne Muscular Dystrophy or where there is a strong family history of breast cancer. This section is expected to come into force in October 2009.

• The Act will remove any doubt about whether fertility treatment can be offered to same sex couples and single women. The new law will  allow lesbians and single women to receive treatment. This section will come into force in April 2009.

• The current law requires that when offering fertility treatment clinics should give consideration to “the need of that child for a father”. The Act changes this emphasise to considering the child’s need for “supportive parents”. This section will come into force in April  2009.

• Any woman receiving treatment must be given a suitable opportunity to receive counselling as must her partner and this must be offered before treatment and they must also be given relevant information which must include (in the case of couples using donated eggs or sperm) the importance of informing any child born that they were donor conceived and doing this at the earliest opportunity. The information will give details of ways to inform the child.

• Under the current law a couple seeking treatment must consent to the storage of embryos or use of donated sperm or eggs. The Act introduces a “cooling off period” where one of the parties (e.g. partner or donor) withdraws their consent. The embryo will continue to be stored and will not be destroyed for a year. This allows the parties to try to reach a private resolution to the conflict. This cooling off period willalso to apply to single women seeking fertility treatment where the donor withdraws consent.

• Under the new law in order for a man to be regarded as the father at the time the woman is artificially inseminated, the couple must have given notices of consent to the clinic to him being treated as the father and neither must have withdrawn their consent and the woman must not have served a cross notice consenting to another man being named as the father. However after transfer of the embryo neither the man nor the woman can withdraw consent. However if the woman does not conceive and a new cycle of treatment begins consent can be withdrawn to the man being treated as the father for the new cycle.

• The law will be changed so that where a female who is in a civil partnership gives birth to a child by assisted reproduction (anywhere in the world) and using a clinic, she will be the mother of the child and her partner will be regarded as the other parent (unless she did not consent to the treatment). The partner will also automatically have parental responsibility. For same sex females who are not in a civil partnership the other partner will be regarded as the parent if treatment was in a UK licensed clinic and the couple signed notices of consent to the other partner being treated as a parent (before transfer of the embryo). However the other partner will need to obtain parental responsibility by either being named on the birth certificate, entering into a signed parental agreement with her partner or applying for a court order. This section will come into force in April 2009.

• Civil partners, unmarried couples and same sex couples who are not in a civil partnership will under the new law be able to apply to the court for a parental order formally recognising them as the legal parents. At present only married couples can apply. This section will come into force in April 2009.

• Under the current law a donor conceived person can apply for information about the identity of the donor. The Act will allow this information to be requested from the age of 16 instead of 18. However this only applies to non-identifying information (e.g. sex of the donor, hair colour etc) Any identifying information can only be obtained from age 18. This section is expected to come into force in October 2009.

• A donor conceived person will also be allowed to apply for information about the number, sex and year of birth of any half siblings also conceived using donated eggs or sperm. This information can be obtained from age 16. This section is expected to come into force in October 2009.

• A donor conceived person will also be allowed to find out whether they are related to someone they propose to marry, enter a civil partnership or a relationship with. However their partner will also need to give consent to the release of this information. There is no age limit connected to requesting this information. This section is expected to come into force in October 2009.

• The Human Fertilisation and Embryology Authority (HFEA) will be given new powers to inform a donor that a donor-conceived person has requested information about him/her.

• Donors themselves will now be allowed to request information about the number, sex and year of birth of children born as a result of their donated sperm/eggs.

This Act represents a major shift towards recognising the rights of  all of those wishing to conceive by alternative methods.