Commentary on Sections Section 1: Certain deceased men to be registered as fathers
6.This section consists of two subsections which contain the main provisions of the Act.
7.Subsection (1) inserts nine new subsections (5A) to (5I) 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.
8.New subsection (5A) provides that in the case of a married couple, where a child is conceived after the husband’s death using his sperm or using an embryo created with his sperm before his death, the woman may elect in writing, not later than the end of the period of 42 days from 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 (5I).
9.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 provided the man gave consent in writing (and did not withdraw that consent) except where someone else is to be treated as the father of the child by virtue of section 28(2) or (3) of the 1990 Act or by virtue of adoption or the child being treated as mentioned in section 28(5)(a) or (b) of the 1990 Act. The consent given by the man must have been to the use of his sperm after his death which brought about the creation of the embryo carried by the woman or (as the case may be) to the placing in the woman after his death of an embryo which was brought about using his sperm before his death, and to being treated for the purpose mentioned in subsection (5I) as the father of any resulting child.
10.New subsection (5B) provides that in the case of an unmarried couple, where a child is conceived after the partner’s death using his sperm or using an embryo created with his sperm before his death, the woman may elect in writing, not later than the end of the period of 42 days from 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 (5I). 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 under paragraph 1 of Schedule 2 to the 1990 Act applies or outside the UK. The circumstances in which an election by the woman will be effective are the same as those set out in paragraph 9 above in relation to the new subsection (5A) (although the reference to the husband should be read as a reference to the partner).
11.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 in writing, not later than the end of the period of 42 days from 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 (5I). An election by the woman will be effective provided the man gave consent in writing (and did not withdraw that consent) except where someone else is to be treated as the father of the child by virtue of section 28(2) or (3) of the 1990 Act or by virtue of adoption or the child being treated as mentioned in section 28(5)(a) or (b) of the 1990 Act. The consent given by the man must have been to the placing in the woman after his death of the embryo which was brought about using donor sperm before his death, and to being treated for the purpose mentioned in subsection (5I) as the father of any resulting child.
12.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 under paragraph 1 of Schedule 2 to the 1990 Act applies or outside the UK, the woman may elect in writing, not later than the end of the period of 42 days from 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 (5I). The circumstances in which an election by the woman will be effective are the same as those set out in paragraph 11 above in relation to the new subsection (5C) (although the reference to the husband should be read as a reference to the partner).
13.New subsections (5E) to (5I) supplement new subsections (5A) to (5D). In particular, subsection (5E) provides that in each of subsections (5A) to (5D) the period of 42 days, by the end of which the woman’s election must have been made, is to be read as a period of 21 days in relation to Scotland. In addition, subsection (5F) not only makes clear that a woman’s election can be made before the child’s birth, but also allows the 42 or 21-day periods to be extended by the Registrar General.
14.Further requirements for registration, set out in the Schedule to the Act, are the production by the mother of a certificate from a registered medical practitioner as to the medical facts concerned and such other documentary evidence (if any) that the registrar considers appropriate. Where the mother is dead or otherwise unable to produce the documents required, they may be produced by certain qualified persons.
15.Subsection (2) of section 1 inserts new subsections (3A) to (3D) after section 29(3) of the 1990 Act. These limit the purpose for which the deceased husband (or as the case may be, deceased partner) may be treated as the father to that mentioned in new subsection (5I).