IVF and Assisted Reproduction

Heterosexual couples and IVF/assisted reproduction

Definition of ‘Mother’ and ‘Father’: 

• Mother – The woman who carried the child in pregnancy is regarded in law as the mother, whether or not she is the child’s genetic mother.
• Father – If a woman has become pregnant by an embryo, sperm or eggs being placed inside her or by artificial insemination and the embryo she carries is not created from her husband’s sperm, then her husband or ‘consenting partner’ shall be treated as the father for all purposes, unless he can show that he did not consent.

If the man is not married to the woman, whether he is deemed the ‘father’ under law will depend upon whether he was ‘treated together’ with the woman and whether his written consent is given to be treated as the father.  So there is a distinction between married and non-married heterosexual couples.

Same sex female couples and IVF/assisted reproduction

Under the Human Fertilisation and Embryology Act 2008 female couples may be deemed, legally, to be the parents of a child conceived through infertility treatment.

If two women are in a civil partnership or same sex marriage, then the woman who has carried the child is deemed to be the ‘mother’ and her civil partner/spouse is deemed to be the other ‘parent’ of the child, unless she does not consent to being so.

If the female couple are cohabiting but not in a civil partnership, then the female who did not carry the child can become a ‘parent’ under law by providing her consent in writing at the time of her partner’s treatment (in other words, when the embryo or the sperm and eggs were placed in woman or the woman was artificially inseminated).

In either scenario, where the other woman is legally deemed to be the ‘parent’ of the child, no man is to be treated as the father of the child.

Assuming the IVF/assisted reproduction treatment has been carried out at a licensed clinic and the necessary consent forms have been completed there, once the baby has been born, the parents should take the paperwork from the clinic to their local registry office, who will be able to register the child’s birth.

The National Records of Scotland website gives more guidance on registering a birth.

If a couple have chosen to freeze their sperm, eggs or embryos in the hope of being able to use them in the future, they will have to enter into an agreement regulating the use of their embryos  at the licensed clinic which will carry out the treatment. At that stage, they have to give their consent to the use of their embryos and agree on how long they’ll be stored for, how they will be used and what will happen if one party dies. 

If the embryos have been frozen, either party can withdraw their consent at any time before the embryos are used.  If that happens, the embryos cannot be used. 

If a party wants to ‘claim’ on the embryos as part of any subsequent divorce, then there is very little they can do if the other party withdraws their consent.  A person has an absolute right to prevent their embryo being used and in that situation, as difficult as it may be, the embryos will most likely be destroyed once consent is withdrawn.