What is Assisted Human Reproduction (or AHR)?         

Assisted human reproduction or AHR is where a person is involved in “assisted reproductive procedures” for the purpose of human reproduction (for instance IVF, receiving or becoming a sperm or egg donor, or using a surrogate).

Who are the parents of a child born after AHR procedures?

When parties involved in AHR procedures often ask for clarity around what the law says about their various parental rights.   A brief summary of the key principles are set out below:

Pregnant woman

Regardless of whether the egg that results in pregnancy was donated or not, a pregnant woman will automatically be considered the parent of the child she is pregnant with.

Pregnant woman’s partner

Regardless of whether the pregnant woman’s partner is male or female, and regardless of whether a donor egg or sperm was used during the AHR procedure, the pregnant woman’s partner will automatically be considered a parent of the child.  This will only be the case if the women’s partner consented to the AHR procedure.   Consent will usually be presumed, unless there is evidence that shows otherwise. 

Donors

Whether or not the donor is a parent of the child depends on the circumstances in each case.  Generally speaking, the donor is only considered a parent if they are in a relationship with the person who is having the child.

Examples where a donor is considered to be a parent:

(a)  Woman A becomes pregnant from an egg donated by her partner, woman B, and they are partners at the time of conception.

(b)  Woman A becomes pregnant from the donation of an ovum by woman B. Woman A and B become partners after conception.

(c)  Woman A becomes pregnant from the donation of sperm by man C. Woman A and man C become partners after conception.

Where the donor becomes a partner of woman A after conception, the parental rights and liabilities of the donor only start at the time that the parties become partners. 

Only one partner of woman A can become a parent of the child.

What is guardianship and who are the child’s guardians?

A guardian of a child has all the duties, powers, rights and responsibilities for a child’s day-to-day care and development.  A guardian can also make decisions about important matters like the child’s name (and any changes to it); changes to the child’s place of residence; medical treatment; education; and the child’s culture, language, and religious denomination and practice.

Guardianship will continue regardless of whether the child lives with the guardian, unless the guardianship is removed by Court Order.

Where there is more than one guardian, the guardians have to act jointly (by discussing and agreeing between themselves).

Parents will automatically be guardians of a child, even if the child was born as a result of AHR procedures.  A donor will have no guardianship rights, unless the donor is a parent. 

To read more about guardianship, click here. http://raineycollins.co.nz/your-resources/articles/guardianship

Agreements between parents and donors

The parents of a child conceived as a result of an AHR procedure, can make an agreement with a donor.  An agreement is not binding or enforceable unless the agreement is turned into a court order (which can take place by consent between the parties). 

An agreement or order can set out details like the role of the donor and any contact the donor may have with the child.

If there is no order, the parties (parents or a donor) may apply to the court for assistance to help resolve any disputes concerning the upbringing of the child.

Using providers versus doing things on your own

Some parties use providers to assist with the AHR procedure, while other parties do things on their own.  A provider is someone who is in the business of arranging and performing services in which donated embryos or donated cells are used. 

When using a provider, there are additional rules which need to be complied with, including that the provider must ensure donors, the recipients of AHR services, and any potential guardians are provided with information and also that information about donors is  collected. 

To read more about using a provider, click here.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins, we have an experienced family law team, who can answer your questions and put you on the right track.

 

Jaenine Badenhorst
Family Lawyer