This document discusses legal concepts of parentage, parenthood, and parental responsibility under UK family law. It addresses questions like what makes someone a legal parent, who are a child's parents, and what parental responsibility entails. Key points covered include: - Legal parenthood can be established through genetic, gestational, or social means, or through court orders - The woman who gives birth is automatically the legal mother under the Human Fertilisation and Embryology Act 2008 - For married or civil partnered couples undergoing fertility treatment, legal parenthood of both partners is established - Unmarried partners may need a parental responsibility order to be recognized as a legal parent - Parental responsibility confers

1. FAMILY LAW
6. Parentage, Parenthood
and Parental Responsibility
Professor Thérèse Callus
Module convenor
m.t.callus@reading.ac.uk
School of Law

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We started by asking:
- What is a family ?
- Who are my family ?
Now we ask:
What is a parent ?
Who are my parents ?

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4. ‘Legal parenthood is ‘a question of most
fundamental gravity and importance. What,
after all, to any child, to any parent, never
mind to future generations and, indeed, to
society at large, can be more important,
emotionally, psychologically, socially and
legally, than the answer to the question: who
is my parent? Is this my child?’
per Munby P in Re HFEA (Cases A, B,C, D, E, F
and G) [2015] EWHC 2602 Fam:
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Parents and children
What is a parent ?
• Genetic parentage: the provision of the
gametes which produce the child.
• Gestational parenthood: the conceiving
and bearing of the child…a very special
relationship…which is different from any
other (In re G (children) [2006] UKHL 43).
• Legal parenthood
• Social and psychological parenthood
• Parental responsibility

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Mother
• Gestational link = legal status 
• Confirmed in s33 HFE Act 2008; (NB. s47
negates status of egg donor)
• Advantage of certainty
• Ensures at least one ‘parent’ with legal
responsibility for the child
• Recognises special bond (Re G)
• Not necessarily permanent: Adoption
order or parental order (under s54 HFE
Act 2008) may negate mother’s legal
status in favour of another

7. R (OTAO TT) v Registrar General and others [2019]
EWHC 2384 (Fam) (Fred McConnoll case)
‘Being a ‘mother’, whilst hitherto always associated with
being female, is the status afforded to a person who
undergoes the physical and biological process of carrying a
pregnancy and giving birth. It is now medically and legally
possible for an individual, whose gender is recognised in
law as male, to become pregnant and give birth to their
child. Whilst that person’s gender is ‘male’, their parental
status, which derives from their biological role in giving
birth, is that of ‘mother’’. McFarlane, P. [at 279].
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Mother
• Gestational link = legal status 
• Confirmed in s33 HFE Act 2008; (NB. s47
negates status of egg donor)
• Advantage of certainty
• Ensures at least one ‘parent’ with legal
responsibility for the child
• Recognises special bond (Re G)
• Not necessarily permanent: Adoption
order or parental order (under s54 HFE
Act 2008) may negate mother’s legal
status in favour of another

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This couple (Stephen and Sarah) have four
children (conceived by artificial insemination by
donor).
They married in 2005.
Stephen can never be the children’s legal
father, because in English law, a father
must be a man…
X, Y and Z v. UK [1997] 2 FLR 893
NB Sperm donor under the HFE Act 2008 is not the father: s41(1)

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White couple, Mr and Mrs A seek treatment at
IVF clinic using their own gametes. Mrs A gives
birth to mixed-race twins.
Black couple, Mr and Mrs B also seek treatment
at IVF clinic using their own gametes. No
pregnancy results.
By error, Mr B’s sperm had been mixed with Mrs
A’s eggs.
"The big problem now is, who are the real
parents of the twins?" BBC news 8th July 2002
Leeds Teaching NHS Hospital Trust v. A [2003] 1 FLR
1091

11. Surrogacy
S54 (couples), s54A (single applicants) HFE Act
2008: parental orders
- Application within 6 months of birth
- Child’s home with applicants at time of application
- Either or both parents domiciled in UK
- Parents over 18 years old
- Unconditional agreement of birth mother and any other
parent (eg her husband)
- No money or other benefit paid (except for expenses
reasonably incurred)…
The law ‘may… be honoured more in the breach
than in the observance.’ (Law Commission 13th Programme of
Reform,para 2.42). 11

12. Surrogacy reform
Law Commission 13th Programme:
‘We take the view that the law relating to surrogacy is outdated
and unclear, and requires comprehensive reform. Reform will
deliver significant benefits of clarity, modernity and the
protection of those who enter into surrogacy arrangements
and, most importantly, of the children born as a result of such
arrangements.’ (para 2.44)
- Unsatisfactory application of s54
- Desires of surrogates themselves
- Intention as founding justification
- Child’s rights to access information
- Nationality of children born abroad where local parentage laws do not
reflect UK law
Consultation Paper 244 (2019): Building families through surrogacy: a new
law 12

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HFE Act 2008 - parents
• Introduction of ‘agreed’ father and ‘other female
parent’
• To equate the ‘other female parent’ to ‘father’ in
existing statutory provisions
• To allow civil partners and those ‘living as
partners in an enduring family relationship’ or
single applicants to obtain parental orders under
s54 HFE Act 2008
• Fathers: s35 (if married); ss36-37 (if informal partners)
• Second female parent: s42 (married or civil partnered);
s43 (informal partners)
– Consent is central

14. Difficulties with intention and consent
Home/ ‘DIY’ insemination and informal couples
• For ‘DIY’ insemination outside HFE Act, genetic default
remains:
birth mother + her partner = nuclear, functional family but,
‘sperm donor’ = legal father  conflict
• Genetic ties trump intention (where HFE Act does not
apply) but mother’s partner may apply for s8/PR orders
• Where Act does apply, courts still suggest role for genetic
donor:
Re G and Re Z (Children: Sperm Donors: Leave to Apply for
Children Act Orders) [2013] EWHC 134 (Fam)
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Difficultie

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Establishing parentage/parenthood:
• Biological truth should prevail:
“The situation in which a legal presumption was allowed to prevail
over biological and social reality, without regard to both established
facts and the wishes of those concerned and without actually
benefiting anyone, was not compatible, even having regard to the
margin of appreciation, with the obligation to secure effective respect
for private and family life”.
Shofman v. Russia ECHR App.74826/01
• DNA testing to confirm
• Is there a right to know one’s genetic origins?
• Gamete donors not anonymous since 2005
• Errors in recording of consent to treatment under HFE Act have
resulted in declarations of non-parenthood (where parties appear to
have changed their mind/relationship breakdown).

16. Person who gives birth is legal mother:
Mater certa semper est…s33(1) HFE Act 2008…Fred McConnoll case
For married/civil partnered couples, the father/second parent:
Artificial insemination at home or in clinic:
- husband will be the father s35(1) HFE Act
- female spouse/CP will be second female parent: s42(1)
…unless shown they did not consent.
For informal cohabitants:
Artificial insemination at home:
- partner will NOT be legal father/parent but may acquire PR if
registered on birth certificate
Artificial insemination in licensed clinic:
- male partner will be father s36-37 HFE Act
- female partner will be second female parents43-44 HFE Act
…provided the agreed parenthood conditions are satisfied.
If conditions not satisfied, no consent  common law default genetics trump
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Parental Responsibility
• Identifies who is legally responsible for decisions
concerning the upbringing and welfare of the
child
• Automatic for mothers and some fathers
• May be agreed upon between a mother and
(unmarried) father
• Can be shared with a number of adults, through
court order
• Does not have to be exercised by the biological
‘parent’ (s4ZA CA 1989 second female parent under
s43 HFE Act assimilated to ‘unmarried father’)
• Parental responsibility - cedes to growing
autonomy of the child to take decisions for
herself

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‘…parental responsibility can be an inaccessible concept at
the best of times, not infrequently difficult for lawyers to
grasp and often very challenging for those who are not
lawyers.’
per Black J in Re D (contact and PR; lesbian mothers
and known fathers) [2006] 1 FCR 556
s.3(1) Children Act 1989:
‘…all the rights, duties, powers, responsibilities and
authority which by law a parent of a child has in relation to
the child and his property’.

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Elements of parental responsibility :
• Bringing up the child
• Protecting and maintaining the child
• Disciplining the child
• Determining child’s education / religion
• Consenting to child’s medical treatment
• Claiming child’s passport
• Naming the child
• Administering child’s property…
See Bromley’s Family Law, (10th ed.) p.377.

20. • PR orders under s4 and s12 Children Act 1989
• S12 CA 1989 – court must or may take into account making PR
order depending on which s8 Child Arrangement Orders are being
made.
• S4 CA 1989 – factors the court will take into account:
– degree of commitment shown by father to child
– degree of attachment
– reasons for father’s application
Re H (minors)(Local authority: parental responsibility)(no.3) [1991] 1
FLR 214
• But what is/should be the purpose of PR order?
‘What will be different for D if her father were to be granted parental
responsibility is his visibility: his involvement in decision making, his
presence at important events (doctor's appointments, school open evening
and events and other things that he becomes aware of). This will affect
peoples' awareness of the importance of D's father and, in this sense, give
him recognition and some authority.’
Re D (contact and PR; lesbian mothers and known fathers) [2006] 1 FCR 556
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Compare with R v E & F (female
parents:known father) [2010] EWHC 417
(Fam)
[94] ‘If PR were granted to Richard (father) it
is likely that conflicts would arise.’
[98] …’The relationship of Daniel and
Richard can be fully promoted through
contact arrangements’.

22. Issues in exercise of PR
• S2(7) Children Act 1989
Re J (child’s religious upbringing and circumcision)[2000] 1
FLR 571:
Butler Sloss P: ‘There is, in my view, a small group
of important decisions made on behalf of a child
which, in the absence of agreement of those with
parental responsibility, ought not to be carried out or
arranged by a one-parent carer although she has
parental responsibility under s2(7) of the Children
Act 1989. Such a decision ought not to be made
without the specific approval of the court.’
• Permanent/long term effect decisions –
– Change of name, schooling, medical treatment, immunisation…
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