The Department of Health has put out to consultation draft regulations to implement the provisions of the Human Fertilisation and Embryology Act 2008 (the 2008 Act) which seek to extend the availability of parental orders for those who commission surrogacy arrangements.

The consultation concerns the draft Human Fertilisation and Embryology (Parental Orders) Regulations 2010 (the draft regulations) which are intended to replace the existing Parental Orders (Human Fertilisation and Embryology) Regulations 1994.

The requirement for parental orders, where a child is born to a surrogate, stems from the fact that the birth mother is the child’s legal mother, whether or not her own egg was used (so-called “straight surrogacy”) or whether she has carried to term an embryo implanted in her utilising the commissioning mother’s egg or a donor egg (“host surrogacy”). If the surrogate is married or in a civil partnership, then her husband or civil partner will be the legal father or second parent of the child (unless (s)he did not consent to the artificial insemination or gamete/embryo transfer), regardless of where treatment took place.

If the surrogate is not married or in a civil partnership, and treatment takes place in a Human Fertilisation and Embryology Authority licensed centre, her partner will only be the legal father or the second parent of the child if a fatherhood or parenthood agreement is completed.

If treatment takes place outside an HFEA licensed centre, the sperm donor will be the child’s legal father. The intention being that the commissioning couple will raise the child, as opposed to the surrogate, parenthood and parental responsibility must therefore be transferred from the birth legal parents to the commissioning couple, to give full effect to the arrangement.

Sections 54 and 55 of the 2008 Act will replace the provisions of the Human Fertilisation and Embryology Act 1990 relating to parental orders. The 2008 Act will allow civil partners and other couples living as partners in an enduring family relationship to apply for parental orders, in addition to married couples as at present.

The consultation, which can be accessed here, closes on 23 November 2009.