Tony's Parental Rights to the Unborn Child
Tony's attempt to exercise parental responsibility over the child conceived as a result of fertility treatment will be decided based on several factors. First, as noted in the case of The L Teaching Hospitals NHS Trust v. Mr A, Mrs A, YA, ZA, The Human Fertilisation and Embryology Authority, Mr B, Mrs B, English common law holds that children born within a marriage are presumed to be children of that marriage. This common law presumption has been extended even to more "modern" forms of insemination. In particular, this presumption is codified in the Human Fertilisation and Embryology Act 1990 ("the 1990 Act"), which states that "[i]f at the time of the placing in her of the embryo or the sperm and eggs or of her insemination, the woman was a party to a marriage, and the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage, then . . . the other party to the marriage shall be treated as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or the sperm and eggs or to her insemination." Thus, unless other circumstances apply, where a woman has been artificially inseminated during marriage, that woman's husband will be treated as the father of the child regardless of whether he was not the actual sperm donor so long as he did not withhold his consent to the insemination (See Re CH, 569).
Thus, Tony will likely begin with the presumption that he is the father of Cherie's unborn child. However, the case of The L Teaching Hospitals NHS Trust also suggests complications Tony might encounter if the clinic does confirm that the embryo implanted into Cherie was not fertilized with Tony's sperm. In that case, twins YA and ZA were born to Mr. and Mrs. A through artificial insemination. Mr. and Mrs. A believed that the children were their biological children as they had only authorized The ...