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The Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018

As Enacted Cited authorities 81 Cited in Amendments 29 Related
Vincent
JurisdictionUK Non-devolved
CitationSI 2018/1413
Year2018

2018 No. 1413

Human Fertilisation And Embryology

The Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018

Made 20th December 2018

Coming into force in accordance with article 1(1)

Section 54(1) and (2) of the Human Fertilisation and Embryology Act 20081have been declared to be incompatible with a Convention right under section 4 of the Human Rights Act 19982.

The time for bringing an appeal has expired and no appeal was made within that time.

The Secretary of State considers that there are compelling reasons for proceeding by way of a remedial Order under section 10 of the Human Rights Act 1998 to make such amendments to the Human Fertilisation and Embryology Act 2008 as are necessary to remove that incompatibility.

In accordance with paragraph 2(a) of Schedule 2 to the Human Rights Act 19983, a draft of this instrument was laid before Parliament and was approved by resolution of each House of Parliament, a document containing a draft of this instrument having previously been laid before Parliament in accordance with paragraph 3(1) of that Schedule.

Accordingly, the Secretary of State makes the following Order in exercise of the powers conferred by section 10(2) of, and paragraph 1(1)(a), (c) and (d), (2) and (3) of Schedule 2 to, the Human Rights Act 1998.

S-1 Citation, commencement and extent

Citation, commencement and extent

1.—(1) This Order may be cited as the Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 and comes into force on the 14th day after the day on which it is made.

(2) Any amendment made by this Order has the same extent as the provision which it amends.

S-2 Amendments to the Human Fertilisation and Embryology Act 2008

Amendments to the Human Fertilisation and Embryology Act 2008

2.—(1) The Human Fertilisation and Embryology Act 2008 is amended as follows.

(2) In the heading of section 54 (parental orders) at the end insert “: two applicants”.

(3) In subsection (1)(c) of that section, for “(8)” substitute “(8A)”.

(4) In that section after subsection (8) insert—

S-8A

“8A An order relating to the child must not previously have been made under this section or section 54A, unless the order has been quashed or an appeal against the order has been allowed.”.

(5) After section 54 insert—

S-54A

“Parental orders: one applicant

54A.—(1) On an application made by one person (“the applicant”), the court may make an order providing for a child to be treated in law as the child of the applicant if—

(a)

(a) the child has been carried by a woman who is not the applicant, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination,

(b)

(b) the gametes of the applicant were used to bring about the creation of the embryo, and

(c)

(c) the conditions in subsections (2) to (8) are satisfied.

(2) Except in a case falling within subsection (11), the applicant must apply for the order within the period of 6 months beginning with the day on which the child is born.

(3) At the time of the application and the making of the order—

(a)

(a) the child’s home must be with the applicant, and

(b)

(b) the applicant must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man.

(4) At the time of the making of the order the applicant must have attained the age of 18.

(5) The court must be satisfied that both—

(a)

(a) the woman who carried the child, and

(b)

(b) any other person who is a parent of the child but is not the applicant (including any man who is the father by virtue of section 35 or 36 or any woman who is a parent by virtue of section 42 or 43),

have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.

(6) Subsection (5) does not require the agreement of a person who cannot be found or is incapable of giving agreement; and the agreement of the woman who carried the child is ineffective for the purpose of that subsection if given by her less than six weeks after the child’s birth.

(7) The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by the applicant for or in consideration of—

(a)

(a) the making of the order,

(b)

(b) any agreement required by subsection (5),

(c)

(c) the handing over of the child to the applicant, or

(d)

(d) the making of arrangements with a view to the making of the order,

unless authorised by the court.

(8) An order relating to the child must not previously have been made under section 54 or this section, unless the order has been quashed or an appeal against the order has been allowed.

(9) Section 54(9) applies for the purposes of an application under this section.

(10) Subsection (1)(a) applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or the sperm and eggs or her artificial insemination.

(11) An application which relates to a child born before the coming into force of this section may be made within the period of six months beginning with the day on which this section comes into force.”.

(6) In section 55(1)(a) and (b) (parental orders: supplementary provision) after “section 54” insert “or 54A”.

S-3 Consequential amendments

Consequential amendments

3.—(1) Schedule 1 (which contains amendments to Acts and Orders consequential on the coming into force of section 54A of the 2008 Act) has effect.

(2) Schedule 2 (which contains amendments to subordinate legislation consequential on the coming into force of section 54A of the 2008 Act) has effect.

Jackie Doyle-Price

Parliamentary Under-Secretary of State,

Department for Health and Social Care

20th December 2018

SCHEDULE 1

Article 3(1)

Amendments to Acts and Orders consequential on the coming into force of section 54A of the Human Fertilisation and Embryology Act 2008

SCH-1.1

1. Senior Courts Act 1981

In paragraph 3(f)(iv) of Schedule 1 to the Senior Courts Act 19814 (assignment of business of High Court to the Family Division) after “section 54” insert “or 54A”.

SCH-1.2

2. Social Security Act 1989

In Schedule 5 to the Social Security Act 19895(employment-related schemes for pensions or other benefits: equal treatment for men and women), in paragraph 5B(8)(b)6after “section 54” insert “or 54A”.

SCH-1.3

3. Social Security (Northern Ireland) Order 1989

In Schedule 5 to the Social Security (Northern Ireland) Order 19897(employment-related schemes for pensions or other benefits: equal treatment for men and women), in paragraph 5B(8)(b)8after “section 54” insert “or 54A”.

SCH-1.4

4. Human Fertilisation and Embryology Act 1990

(1) The Human Fertilisation and Embryology Act 19909is amended as follows.

(2) In section 33A(2)(q)10(disapplication of prohibition on disclosing information) after “section 54” insert “or subsection (1) of section 54A”.

(3) In section 35A(2)(b)11(power to provide for provisions about parental orders to have effect in cases of mitochondrial donation) for “section 54” substitute “sections 54 and 54A”.

SCH-1.5

5. Child Support Act 1991

In section 26(2) of the Child Support Act 199112(cases in which assumptions may be made about a child’s parentage), in Case B, after “section 54” insert “or 54A”.

SCH-1.6

6. Child Support (Northern Ireland) Order 1991

In article 27(2) of the Child Support (Northern Ireland) Order 199113(cases in which assumptions may be made about a child’s parentage), in Case B, after “section 54” insert “or 54A”.

SCH-1.7

7. Social Security Contributions and Benefits Act 1992

(1) In section 171ZT (power to apply Part 12ZB) of the Social Security Contributions and Benefits Act 199214, for subsection (2) substitute—

SCH-1.2

“2 The Secretary of State may by regulations provide for this Part to have effect, with such modifications as the regulations may prescribe, in relation to—

(a) cases which involve a person who has applied, or intends to apply, with another person for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 and a child who is, or will be, the subject of the order,

(b) cases which involve a person who has applied, or intends to apply, for a parental order under section 54A of that Act and a child who is, or will be, the subject of the order.”.

(2) In subsection (3)(a) of that section, after “order” insert “under section 54 or 54A of the Human Fertilisation and Embryology Act 2008”.

SCH-1.8

8. Social Security Contributions and Benefits (Northern Ireland) Act 1992

(1) In section 167ZT (power to apply Part 12ZB) of the Social Security Contributions and Benefits (Northern Ireland) Act 199215, for subsection (2) substitute—

SCH-1.2

“2 The Department may by regulations provide for this Part to have effect, with such modifications as may be prescribed, in relation to—

(a) cases which involve a person who has applied, or intends to apply, with another person for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 and a child who is, or will be, the subject of the order,

(b) cases which involve a person who has applied, or intends to apply, for a parental order under section 54A of that Act and a child who is, or will be, the subject of the order.”.

(2) In subsection (3)(a) of that section after “order” insert “under section 54 or 54A of the Human Fertilisation and Embryology Act 2008”.

SCH-1.9

9. Children (Scotland) Act 1995

In section 11(4)(c) of the Children (Scotland) Act 199516(cases in which court orders may not be made) after “section 54” insert “or 54A”.

SCH-1.10

10. Children (Northern Ireland) Order 1995

In article 8(4)(g) of the Children (Northern Ireland) Order 199517(interpretation) after “section 54” insert “or “54A”.

SCH-1.11

11. Employment Rights Act 1996

(1) The Employment Rights Act 199618is amended as follows.

(2) Section 57ZE (right to time off to accompany to ante-natal appointment)19is amended as follows.

(3) Omit the “or” before subsection (7)(e).

(4) After subsection (7)(e) insert—

“or

(f)

(f) the...

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