Parenthood: Who are a Child's Parents

Who are legally My Parents?

Ever wondered who were legally your parents? A question that may people may face where there are possible issues with paternity, adoption, foster care, surrogacy, sperm donations and many more complications surrounding parenthood. Who is legally your parents can have a great impact on many of the decisions made in your life especially during your childhood and before the legal age to make your own decisions. Discovering who your parents are legally can help find the answers to many questions.

Types of Parenthood

There are three categories that a parent could fall into:

  • Genetic Parenthood

Basically the birth mother and genetic father of the child

  • Gestational Parenthood

Including surrogate mothers and sperm donors

  • Social Parenthood

These are the parents that have raised the child(ren) but are not genetically linked. This could occur in situations where the child may be adopted whether by family friends or complete strangers.

Historically the law has only ever chosen to identify two parents, one male and one female. This position has now changed in line with our ever evolving society

It was also the approach by UK law to preserve the Nuclear Family, the law now accepts all types of parenting with great emphasis being placed on the surrounding circumstances.

Who is the Childs legal Mother?

The woman who gives birth to the child will be the child’s legal mother, even if she is not genetically related to the child.

Human Fertilisation and Embryology Act 2008 s33(1)  ‘The Woman who is carrying or has carried a child as a result of the placing in her an embryo or a sperm and eggs, and no other woman, is to be treated as the mother of the child’

Who is the Child’s legal father?

The Genetic/Biological father will usually be considered the legal father. However there are exceptions to this rule. There is a presumption of paternity of a child to a married woman is the husband, the presumption of paternity if a man’s name appears on a child’s birth certificate and to children born as a result of fertility treatments. All these presumptions are reputable and evidence confirming the paternity is the best way to rebut such a presumption.

Paternity following artificial reproductive methods:

The Mother’s Husband

Where a child is born following the placing of an embryo or eggs in a woman, if the woman was married, and the Husband sperm was not used, the husband will be treated as the legal father, unless it is shown that he did not consent to the treatment.

How is a Mothers Civil Partner recognised?

Where a child is born following the placing of an embryo or eggs and sperm into a woman, or following artificial insemination, if the woman was in a civil partnership, the civil partner is to be treated as the child’s parent unless it is shown and proven that she did not consent to the treatment.

The Unmarried male partner

If neither the rules regarding a mother’s husband nor civil partner apply then the unmarried male partner may be treated as the father if the man was alive at the time of treatment , and donor sperm was used and the agreed ‘fatherhood conditions’ were satisfied

The Agreed Fatherhood Conditions.
  • The man has given notice consenting to him being treated as the child’s father
  • The woman has also given notice of her consenting to the man being treated as the child’s father
  • Neither the mother nor unmarried male partner have since withdrawn their consent
  • The woman has not given further notice of consenting to another man being treated as the child’s father
  • The woman and Man are not within the prohibited degrees of relationship to another.
Woman’s Unmarried Female Partner

If neither of the above situations are relevant then a woman may be treated as the child’s other parent if, the woman was alive at the time of treatment and the agreed female parenthood conditions are satisfied. These conditions follow the same suit as those concerning fatherhood but with relation to a female not male. 

Applying for parenthood in surrogacy situations

Under s30 Human Fertilisation and Embryology Act 1990 (HFEA) , a parental order allows a married couple who are also the commissioning parents to apply for parenthood in surrogacy situations. This was subsequently replaced by s54 HEFA 2008, which extended the availability of parent orders to also cover situations concerning civil partners and parents in an enduring relationship.  

How can a person determine the paternity in court?

  • Article 7(1) United Nations Convention on the Rights of a Child- Gives children the right ti know their parents
  • Article 8 European Convention on Human Rights– finding out paternity can be argued as part of the right to a private and family life
  • S21 (3) Family Reform Act 1969- Court can consent on of the child
  • S23 Family Reform Act 1969- The Court may draw inferences from adult’s refusal to consent to samples being taken for purposes of testing.  

The results of determining legal parenthood

  • A child’s relationship for purposes of marriage law and criminal law on incest will be defined on the basis of legal parenthood.
  • The entitlements of intestacy can be determined in accordance with legal parenthood
  • Citizenship status
  • Obligations to maintain the child by the legal parents
  • Legal parenthood linked to the acquisition of parental responsibility, this may not always be a necessity
  • Legal parents will have the right with respect to a child in local authority and in respect to adoption.