Who’s the daddy? The inheritance rights of IVF children
At the start of National Fertility Awareness Week, inheritance disputes solicitor Chris Green, is reminded of a recent case he dealt with which involved the inheritance rights of IVF children. For further guidance on these legal issues you can call our dedicated free helpline on 0808 139 1599 or send us an email.
The case involved a man who passed away without leaving a valid will. In these circumstances the rules of intestacy dictate who is to benefit from the estate. The deceased had been involved in a number of relationships and was known to have fathered a son. However, we were consulted by a female who claimed to be his daughter and so equally entitled to benefit from the estate.
Our client had been born by way of IVF treatment which her mother and the deceased had undergone together as a couple.
When the deceased had been diagnosed with a terminal illness, and in anticipation of there being the potential for dispute once he passed away, a DNA Test was carried out which confirmed that he was our client’s biological father.
The legal position in England and Wales is that the biological father is the only individual who can be treated as the legal ‘father of the child’.
However, the opposing parties in this case referred to a piece of legislation called the Human Fertilisation and Embryology Act 2008. This provides a definition as to who is to be treated as the “father” for legal purposes in cases where a child is born by way of assisted reproduction.
It takes the question in two parts.
First, it asks whether the mother was married to a man at the time of conception. Section 35 states that if the mother of the child was married at the time of (i) the placing in her of the embryo or the sperm and eggs, or (ii) her artificial insemination, and if the creation of the embryo which led to the conception of the child was not brought about with the sperm of the husband, then the husband is to be treated as the ‘father of the child’, unless he did not consent to the procedure taking place.
This was not applicable in our client’s case as the deceased and her mother were not married at the time she was conceived.
Second, if Section 35 does not apply, then Section 36 provides that if:
(i) the embryo or the sperm and eggs were placed in the mother, or the mother was artificially inseminated, in the course of treatment services provided in the UK by a licensed person;
(ii) at the time when the embryo or the sperm and eggs were placed in the mother, or the mother was artificially inseminated, the agreed “fatherhood conditions” were satisfied in relation to a man;
(iii) ) the man remained alive at that time; and
(iv) the creation of the embryo carried by the mother was not brought about with the man’s sperm,
then, the man is to be treated as the ‘father of the child’.
These fatherhood conditions are met in relation to a man in respect of treatment provided to the mother if:
(i) the man has given a notice stating that he consents to being treated as the father of any child resulting from the treatment;
(ii) the mother has given a notice stating that she consents to the man being so treated as the father of any child resulting from the treatment;
(iii) neither the man nor the mother has, since giving these notices, withdrawn their consent;
(iv )the mother has not, since the giving of the notice, given a further notice consenting to another man being treated as the father or a notice consenting to a woman being treated as a parent of any resulting child; and
(iv) the mother and the man are not within prohibited degrees of relationship in respect of each other.
So, to be considered as a ‘father of a child’ born by way of IVF or assisted reproduction, a man has to consent to the assumption of parental responsibility.
It was argued, successfully in this case, that the provisions of the Human Fertilisation and Embryology Act 2008 did not apply as the child was conceived using the deceased’s sperm.
Because that argument was not accepted by the opposing parties, we made an application to court and successfully obtained a declaration as to parentage. This confirmed that the deceased was to be treated as the legal father of our client. Consequently she was an equal beneficiary of his estate under the rules of intestacy and entitled to receive her inheritance.
The case demonstrates that conception of a child by way of IVF or assisted reproduction clearly has the potential to cause real complications. The inheritance rights of IVF children must therefore be very carefully considered.
If you are involved in a situation where it is unclear whether someone is to be treated as a child of the deceased or require preliminary guidance on the inheritance rights of IVF children, then please contact our team of specialist inheritance lawyers on 0808 139 1599 or send an email to us at [email protected]