Human Fertilisation and Embryology Act 2008

(33A) (1) No person shall disclose any information falling within section 31(2) which the person obtained (whether before or after the coming into force of section 24 of the Human Fertilisation and Embryology Act 2008) in the person's capacity as— (a) a member or employee of the Authority, (b) any person exercising functions of the Authority by virtue of section 8B or 8C of this Act (including a person exercising such functions by virtue of either of those sections as a member of staff or as an employee), (c) any person engaged by the Authority to provide services to the Authority, (d) any person employed by, or engaged to provide services to, a person mentioned in paragraph (c), (e) a person to whom a licence applies, (f) a person to whom a third party agreement applies, or (g) a person to whom directions have been given. (2) Subsection (1) does not apply where— (a) the disclosure is made to a person as a member or employee of the Authority or as a person exercising functions of the Authority as mentioned in subsection (1)(b), (b) the disclosure is made to or by a person falling within subsection (1)(c) for the purpose of the provision of services which that person is engaged to provide to the Authority, (c) the disclosure is made by a person mentioned in subsection (1)(d) for the purpose of enabling a person falling within subsection (1)(c) to provide services which that person is engaged to provide to the Authority, (d) the disclosure is made to a person to whom a licence applies for the purpose of that person's functions as such, (e) the disclosure is made to a person to whom a third party agreement applies for the purpose of that person's functions under that agreement, (f) the disclosure is made in pursuance of directions given by virtue of section 24, (g) the disclosure is made so that no individual can be identified from the information, (h) the disclosure is of information other than identifying donor information and is made with the consent required by section 33B, (i) the disclosure— (i) is made by a person who is satisfied that it is necessary to make the disclosure to avert an imminent danger to the health of an individual (“P”), (ii) is of information falling within section 31(2)(a) which could be disclosed by virtue of paragraph (h) with P's consent or could be disclosed to P by virtue of subsection (5), and (iii) is made in circumstances where it is not reasonably practicable to obtain P's consent, (j) the disclosure is of information which has been lawfully made available to the public before the disclosure is made, (k) the disclosure is made in accordance with sections 31ZA to 31ZE, (l) the disclosure is required or authorised to be made— (i) under regulations made under section 33D, or (ii) in relation to any time before the coming into force of the first regulations under that section, under regulations made under section 251 of the National Health Service Act 2006, (m) the disclosure is made by a person acting in the capacity mentioned in subsection (1)(a) or (b) for the purpose of carrying out the Authority's duties under section 8A, (n) the disclosure is made by a person acting in the capacity mentioned in subsection (1)(a) or (b) in pursuance of an order of a court under section 34 or 35, (o) the disclosure is made by a person acting in the capacity mentioned in subsection (1)(a) or (b) to the Registrar General in pursuance of a request under section 32, (p) the disclosure is made by a person acting in the capacity mentioned in subsection (1)(a) or (b) to any body or person discharging a regulatory function for the purpose of assisting that body or person to carry out that function, (q) the disclosure is made for the purpose of establishing in any proceedings relating to an application for an order under subsection (1) of section 54 of the Human Fertilisation and Embryology Act 2008 whether the condition specified in paragraph (a) or (b) of that subsection is met, (r) the disclosure is made under section 3 of the Access to Health Records Act 1990, (s) the disclosure is made under Article 5 of the Access to Health Records (Northern Ireland) Order 1993, or (t) the disclosure is made necessarily for— (i) the purpose of the investigation of any offence (or suspected offence), or (ii) any purpose preliminary to proceedings, or for the purposes of, or in connection with, any proceedings. (3) Subsection (1) does not apply to the disclosure of information in so far as— (a) the information identifies a person who, but for sections 27 to 29 of this Act or sections 33 to 47 of the Human Fertilisation and Embryology Act 2008, would or might be a parent of a person who instituted proceedings under section 1A of the Congenital Disabilities (Civil Liability) Act 1976, and (b) the disclosure is made for the purpose of defending such proceedings, or instituting connected proceedings for compensation against that parent. (4) Paragraph (t) of subsection (2), so far as relating to disclosure for the purpose of the investigation of an offence or suspected offence, or for any purpose preliminary to, or in connection with proceedings, does not apply— (a) to disclosure of identifying donor information, or (b) to disclosure, in circumstances in which subsection (1) of section 34 of this Act applies, of information relevant to the determination of the question mentioned in that subsection, made by any person acting in a capacity mentioned in any of paragraphs (c) to (g) of subsection (1). (5) Subsection (1) does not apply to the disclosure to any individual of information which— (a) falls within subsection (2) of section 31 of this Act by virtue of any of paragraphs (a) to (e) of that subsection, and (b) relates only to that individual or, in the case of an individual who is treated together with, or gives a notice under section 37 or 44 of the Human Fertilisation and Embryology Act 2008 in respect of, another, only to that individual and that other. (6) In subsection (2)— (a) in paragraph (p) “regulatory function” has the same meaning as in section 32 of the Legislative and Regulatory Reform Act 2006, and (b) in paragraph (t) references to “proceedings” include any formal procedure for dealing with a complaint. (7) In this section “identifying donor information” means information enabling a person to be identified as a person whose gametes were used in accordance with consent given under paragraph 5 of Schedule 3 for the purposes of treatment services or non-medical fertility services in consequence of which an identifiable individual was, or may have been, born. (33B) (1) This section has effect for the purposes of section 33A(2)(h). (2) Subject to subsection (5), the consent required by this section is the consent of each individual who can be identified from the information. (3) Consent in respect of a person who has not attained the age of 18 years (“C”) may be given— (a) by C, in a case where C is competent to deal with the issue of consent, or (b) by a person having parental responsibility for C, in any other case. (4) Consent to disclosure given at the request of another shall be disregarded unless, before it is given, the person requesting it takes reasonable steps to explain to the individual from whom it is requested the implications of compliance with the request. (5) In the case of information which shows that any identifiable individual (“A”) was, or may have been, born in consequence of treatment services, the consent required by this section does not include A's consent if the disclosure is necessarily incidental to the disclosure of information falling within section 31(2)(a). (6) The reference in subsection (3) to parental responsibility is— (a) in relation to England and Wales, to be read in accordance with the Children Act 1989; (b) in relation to Northern Ireland, to be read in accordance with the Children (Northern Ireland) Order 1995; (c) in relation to Scotland, to be read as a reference to parental responsibilities and parental rights within the meaning of the Children (Scotland) Act 1995. (33C) (1) Regulations may provide for additional exceptions from section 33A(1). (2) No exception may be made under this section for— (a) disclosure of a kind mentioned in paragraph (a) or (b) of subsection (4) of section 33A, or (b) disclosure in circumstances in which section 32 of this Act applies of information having the tendency mentioned in subsection (2) of that section, made by any person acting in a capacity mentioned in any of paragraphs (c) to (g) of subsection (1) of section 33A. (33D) (1) Regulations may— (a) make such provision for and in connection with requiring or regulating the processing of protected information for the purposes of medical research as the Secretary of State considers is necessary or expedient in the public interest or in the interests of improving patient care, and (b) make such provision for and in connection with requiring or regulating the processing of protected information for the purposes of any other research as the Secretary of State considers is necessary or expedient in the public interest. (2) Regulations under subsection (1) may, in particular, make provision— (a) for requiring or authorising the disclosure or other processing of protected information to or by persons of any prescribed description subject to compliance with any prescribed conditions (including conditions requiring prescribed undertakings to be obtained from such persons as to the processing of such information), (b) for securing that, where prescribed protected information is processed by a person in accordance with the regulations, anything done by that person in so processing the information must be taken to be lawfully done despite any obligation of confidence owed by the person in respect of it, (c) for requiring fees of a prescribed amount to be paid to the Authority in prescribed circumstances by persons in relation to the disclosure to those persons of protected information under those regulations, (d) for the establishment of one or more bodies to exercise prescribed functions in relation to the processing of protected information under those regulations, (e) as to the membership and proceedings of any such body, and (f) as to the payment of remuneration and allowances to any member of any such body and the reimbursement of expenses. (3) Where regulations under subsection (1) require or regulate the processing of protected information for the purposes of medical research, such regulations may enable any approval given under regulations made under section 251 of the National Health Service Act 2006 (control of patient information) to have effect for the purposes of the regulations under subsection (1) in their application to England and Wales. (4) Subsections (1) to (3) are subject to subsections (5) to (8). (5) Regulations under subsection (1) may not make any provision requiring or authorising the disclosure or other processing, for any purpose, of protected information, where that information is information from which an individual may be identified, if it would be reasonably practicable to achieve that purpose otherwise than pursuant to such regulations, having regard to the cost of and technology available for achieving that purpose. (6) Regulations under this section may not make provision for or in connection with the processing of protected information in a manner inconsistent with any provision made by or under the Data Protection Act 1998. (7) Subsection (6) does not affect the operation of provisions made under subsection (2)(b). (8) Before making any regulations under this section the Secretary of State shall consult such bodies appearing to the Secretary of State to represent the interests of those likely to be affected by the regulations as the Secretary of State considers appropriate. (9) In this section— - “prescribed” means prescribed by regulations made by virtue of this section, - “processing”, in relation to information, means the use, disclosure, or obtaining of the information or the doing of such other things in relation to it as may be prescribed for the purposes of this definition, and - “protected information” means information falling within section 31(2).

Mitochondrial donation

Mitochondrial donation

26

After section 35 of the 1990 Act insert—

(35A) (1) Regulations may provide for any of the relevant provisions to have effect subject to specified modifications in relation to cases where— (a) an egg which is a permitted egg for the purposes of section 3(2) by virtue of regulations made under section 3ZA(5), or (b) an embryo which is a permitted embryo for those purposes by virtue of such regulations, has been created from material provided by two women. (2) In this section “the relevant provisions” means— (a) the following provisions of this Act— (i) section 13(6C) (information whose provision to prospective parents is required by licence condition), (ii) section 31 (register of information), (iii) sections 31ZA to 31ZE (provision of information), and (iv) Schedule 3 (consents to use or storage of gametes, embryos or human admixed embryos etc.), and (b) section 54 of the Human Fertilisation and Embryology Act 2008 (parental orders).

Miscellaneous

Fees

27

After section 35A of the 1990 Act (as inserted by section 26 above) insert—

(35B) (1) The Authority may charge a fee in respect of any of the following— (a) an application for a licence, (b) the grant or renewal of a licence, (c) an application for the revocation or variation of a licence, or (d) the exercise by the Authority of any other function conferred on it by or under this Act or by or under any other enactment— (i) in relation to a licence, (ii) in relation to premises which are or have been premises to which a licence relates, (iii) in relation to premises which are or have been relevant third party premises in relation to a licence, or (iv) in relation to premises which, if an application is granted, will be premises to which a licence relates or relevant third party premises. (2) The amount of any fee charged by virtue of subsection (1) is to be fixed in accordance with a scheme made by the Authority with the approval of the Secretary of State and the Treasury. (3) In fixing the amount of any fee to be charged by virtue of that subsection, the Authority may have regard to the costs incurred by it— (a) in exercising the functions conferred on it by or under this Act (apart from sections 31ZA to 31ZG and 33D), and (b) in exercising any other function conferred on it by or under any other enactment. (4) The Authority may also charge such fee as it thinks fit in respect of any of the following— (a) the giving of notice under section 31ZA(1) or 31ZB(1), or (b) the provision of information under section 31ZA, 31ZB or 31ZE. (5) In fixing the amount of any fee to be charged by virtue of subsection (4) the Authority may have regard to the costs incurred by it in exercising the function to which the fee relates. (6) When exercising its power to charge fees under section 8(2), 31ZF(2)(d) or this section, the Authority may fix different fees for different circumstances.

Inspection, entry, search and seizure

28

• (1) Before section 39 of the 1990 Act (but after the heading “Enforcement” immediately before that section) insert—

(38A) (1) Schedule 3B (which makes provisions about inspection, entry, search and seizure) has effect. (2) Nothing in this Act makes it unlawful for a member or employee of the Authority to keep any embryo, human admixed embryo or gametes in pursuance of that person's functions as such.

• (2) After Schedule 3A to the 1990 Act insert the Schedule set out in Schedule 5 to this Act (inspection, entry, search and seizure).

• (3) Section 39 of the 1990 Act (powers of members and employees of Authority) and section 40 of that Act (power to enter premises) (which are superseded by the amendments made by subsection (2)) cease to have effect.

Offences under the 1990 Act

29

• (1) Section 41 of the 1990 Act (offences) is amended as follows.

• (2) In subsection (1)(a), for “4(1)(c)” substitute “ 4A(1) or (2) ”.

• (3) In subsection (2)—

• (a) after paragraph (a) insert—

(aa) contravenes section 3(1B) of this Act,

,

• (b) after paragraph (ba) insert—

(bb) contravenes section 4(1A) of this Act,

, and

• (c) in paragraph (d), for “section 24(7)(a)” substitute “ section 24(5D) ”.

• (4) In subsection (4), omit “, other than an offence to which subsection (4B) applies,”.

• (5) In subsection (5), for “section 33” substitute “ section 33A ”.

• (6) In subsection (7), for “section 10(2)(a)” substitute “ section 19B(3)(a) or 20B(3)(e) ”.

• (7) In subsection (8)—

• (a) for “or the nominal licensee” substitute “ or the holder of the licence ”, and

• (b) for “or embryos” substitute “ , embryos or human admixed embryos ”.

• (8) In subsection (9), omit “(6),”.

• (9) For subsection (10) substitute—

(10) It is a defence for a person (“the defendant”) charged with an offence of doing anything which, under section 3(1) or (1A), 4(1) or 4A(2), cannot be done except in pursuance of a licence to prove— (a) that the defendant was acting under the direction of another, and (b) that the defendant believed on reasonable grounds— (i) that the other person was at the material time the person responsible under a licence, a person designated by virtue of section 17(2)(b) of this Act as a person to whom a licence applied, or a person to whom directions had been given under section 24(5A) to (5D), and (ii) that the defendant was authorised by virtue of the licence or directions to do the thing in question. (10A) It is a defence for a person (“the defendant”) charged with an offence of doing anything which, under section 3(1A) or (1B) or 4(1A), cannot be done except in pursuance of a licence or a third party agreement to prove— (a) that the defendant was acting under the direction of another, and (b) that the defendant believed on reasonable grounds— (i) that the other person was at the material time the person responsible under a licence, a person designated by virtue of section 17(2)(b) of this Act as a person to whom a licence applied, a person to whom a third party agreement applied, or a person to whom directions had been given under section 24(5A) to (5D), and (ii) that the defendant was authorised by virtue of the licence, third party agreement or directions to do the thing in question.

• (10) Omit subsections (2A), (4A), (4B) and (6).

• (11) Section 41(2) of the 1990 Act as amended by subsection (3) is to be treated as a relevant enactment for the purposes of section 282 of the Criminal Justice Act 2003 (c. 44) (increase in maximum term that may be imposed on summary conviction of offence triable either way).

Regulations under the 1990 Act

30

• (1) Section 45 of the 1990 Act (regulations) is amended as follows.

• (2) After subsection (1) insert—

(1A) Subsection (1) does not enable the Secretary of State to make regulations by virtue of section 19(6) (which confers regulation-making powers on the Authority).

• (3) In subsection (2), after “regulations” insert “ under this Act ”.

• (4) For subsection (3) substitute—

(3) The power to make regulations under this Act may be exercised— (a) either in relation to all cases to which the power extends, or in relation to those cases subject to specified exceptions, or in relation to any specified cases or classes of case, and (b) so as to make, as respects the cases in relation to which it is exercised— (i) the full provision to which the power extends or any less provision (whether by way of exception or otherwise); (ii) the same provision for all cases in relation to which the power is exercised, or different provision as respects the same case or class of case for different purposes; (iii) any such provision either unconditionally, or subject to any specified condition. (3A) Any power of the Secretary of State or the Authority to make regulations under this Act includes power to make such transitional, incidental or supplemental provision as the Secretary of State or the Authority considers appropriate.

• (5) For subsection (4) substitute—

(4) The Secretary of State shall not make regulations by virtue of any of the provisions specified in subsection (4A) unless a draft has been laid before and approved by a resolution of each House of Parliament. (4A) Those provisions are— - section 1(6); - section 3(3)(c); - section 3ZA(5); - section 4(2) or (3); - section 4A(5) or (11); - section 20A(3); - section 20B(2); - section 24(4B); - section 31ZA(2)(a); - section 33C; - section 33D; - section 35A; - section 43; - paragraph 1(1)(g), 1ZC or 3A(1)(c) of Schedule 2.

• (6) In subsection (5), after “regulations” insert “ made by the Secretary of State ”.

Power to make consequential provision

31

After section 45 of the 1990 Act (regulations) insert—

(45A) (1) The Secretary of State may by order make such provision modifying any provision made by or under any enactment as the Secretary of State considers necessary or expedient in consequence of any provision made by regulations under any of the relevant provisions of this Act. (2) For the purposes of subsection (1), “the relevant provisions of this Act” are— (a) section 1(6) (power to include things within the meaning of “embryo” and “gametes” etc.); (b) section 4A(11) (power to amend definition of “human admixed embryo” and other terms). (3) Before making an order under this section containing provision which would, if included in an Act of the Scottish Parliament, be within the legislative competence of that Parliament, the Secretary of State must consult the Scottish Ministers. (4) Before making an order under this section containing provision which would be within the legislative competence of the National Assembly for Wales if it were included in a Measure of the Assembly (or, if the order is made after the Assembly Act provisions come into force, an Act of the Assembly), the Secretary of State must consult the Welsh Ministers. (5) Before making an order under this section containing provision which would if included in an Act of the Northern Ireland Assembly, be within the legislative competence of that Assembly, the Secretary of State must consult the Department of Health, Social Services and Public Safety. (6) In this section— - “enactment” means— 1. an Act of Parliament (other than this Act), 2. an Act of the Scottish Parliament, 3. a Measure or Act of the National Assembly for Wales, or 4. Northern Ireland legislation, - “modify” includes amend, add to, revoke or repeal; - “the Assembly Act provisions” has the meaning given by section 103(8) of the Government of Wales Act 2006.

Orders under the 1990 Act

32

After section 45A (inserted by section 31 above) insert—

(45B) (1) The power to make an order under section 8C(1)(c) or 45A of this Act shall be exercisable by statutory instrument. (2) The power to make an order under section 8C(1)(c) or 45A of this Act includes power to make such transitional, incidental or supplemental provision as the Secretary of State considers appropriate. (3) A statutory instrument containing an order made by the Secretary of State by virtue of section 8C(1)(c) shall be subject to annulment in pursuance of a resolution of either House of Parliament. (4) The Secretary of State shall not make an order by virtue of section 45A unless a draft has been laid before and approved by a resolution of each House of Parliament.

Part 2 — Parenthood in cases involving assisted reproduction

Meaning of “mother”

Meaning of “mother”

33

• (1) The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child.

• (2) Subsection (1) does not apply to any child to the extent that the child is treated by virtue of adoption as not being the woman's child.

• (3) Subsection (1) applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or the sperm and eggs.

Application of sections 35 to 47

Application of sections 35 to 47

34

• (1) Sections 35 to 47 apply, in the case of a child who is being or has been carried by a woman (referred to in those sections as “W”) as a result of the placing in her of an embryo or of sperm and eggs or her artificial insemination, to determine who is to be treated as the other parent of the child.

• (2) Subsection (1) has effect subject to the provisions of sections 39, 40 and 46 limiting the purposes for which a person is treated as the child's other parent by virtue of those sections.

Meaning of “father”

Woman married at time of treatment

35

• (1) If—

• (a) at the time of the placing in her of the embryo or of the sperm and eggs or of her artificial insemination, W was a party to a marriage with a man or a civil partnership with a man, and

• (b) the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage or civil partnership,

then, subject to section 38(2) to (4), the other party to the marriage or civil partnership is to 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 artificial insemination (as the case may be).

• (2) This section applies whether W was in the United Kingdom or elsewhere at the time mentioned in subsection (1)(a).

Treatment provided to woman where agreed fatherhood conditions apply

36

If no man is treated by virtue of section 35 as the father of the child and no woman is treated by virtue of section 42 as a parent of the child but—

• (a) the embryo or the sperm and eggs were placed in W, or W was artificially inseminated, in the course of treatment services provided in the United Kingdom by a person to whom a licence applies,

• (b) at the time when the embryo or the sperm and eggs were placed in W, or W was artificially inseminated, the agreed fatherhood conditions (as set out in section 37) were satisfied in relation to a man, in relation to treatment provided to W under the licence,

• (c) the man remained alive at that time, and

• (d) the creation of the embryo carried by W was not brought about with the man's sperm,

then, subject to section 38(2) to (4), the man is to be treated as the father of the child.

The agreed fatherhood conditions

37

• (1) The agreed fatherhood conditions referred to in section 36(b) are met in relation to a man (“M”) in relation to treatment provided to W under a licence if, but only if,—

• (a) M has given the person responsible a notice stating that he consents to being treated as the father of any child resulting from treatment provided to W under the licence,

• (b) W has given the person responsible a notice stating that she consents to M being so treated,

• (c) neither M nor W has, since giving notice under paragraph (a) or (b), given the person responsible notice of the withdrawal of M's or W's consent to M being so treated,

• (d) W has not, since the giving of the notice under paragraph (b), given the person responsible—

• (i) a further notice under that paragraph stating that she consents to another man being treated as the father of any resulting child, or

• (ii) a notice under section 44(1)(b) stating that she consents to a woman being treated as a parent of any resulting child, and

• (e) W and M are not within prohibited degrees of relationship in relation to each other.

• (2) A notice under subsection (1)(a), (b) or (c) must be in writing and must be signed by the person giving it.

• (3) A notice under subsection (1)(a), (b) or (c) by a person (“S”) who is unable to sign because of illness, injury or physical disability is to be taken to comply with the requirement of subsection (2) as to signature if it is signed at the direction of S, in the presence of S and in the presence of at least one witness who attests the signature.

Further provision relating to sections 35 and 36

38

• (1) Where a person is to be treated as the father of the child by virtue of section 35 or 36, no other person is to be treated as the father of the child.

• (2) In England and Wales and Northern Ireland, sections 35 and 36 do not affect any presumption, applying by virtue of the rules of common law or section A1(2) of the Legitimacy Act 1976 or section 2(1)(a) of the Family Law Act (Northern Ireland) 2001, that a child is the legitimate child of the parties to a marriage or civil partnership.

• (3) In Scotland, sections 35 and 36 do not apply in relation to any child who, by virtue of any enactment or other rule of law, is treated as the child of the parties to a marriage or civil partnership.

• (4) Sections 35 and 36 do not apply to any child to the extent that the child is treated by virtue of adoption as not being the man's child.

Use of sperm, or transfer of embryo, after death of man providing sperm

39

• (1) If—

• (a) the child has been carried by W as a result of the placing in her of an embryo or of sperm and eggs or her artificial insemination,

• (b) the creation of the embryo carried by W was brought about by using the sperm of a man after his death, or the creation of the embryo was brought about using the sperm of a man before his death but the embryo was placed in W after his death,

• (c) the man consented in writing (and did not withdraw the consent)—

• (i) to the use of his sperm after his death which brought about the creation of the embryo carried by W or (as the case may be) to the placing in W after his death of the embryo which was brought about using his sperm before his death, and

• (ii) to being treated for the purpose mentioned in subsection (3) as the father of any resulting child,

• (d) W has elected in writing not later than the end of the period of 42 days from the day on which the child was born for the man to be treated for the purpose mentioned in subsection (3) as the father of the child, and

• (e) no-one else is to be treated—

• (i) as the father of the child by virtue of section 35 or 36 or by virtue of section 38(2) or (3), or

• (ii) as a parent of the child by virtue of section 42 or 43 or by virtue of adoption,

then the man is to be treated for the purpose mentioned in subsection (3) as the father of the child.

• (2) Subsection (1) applies whether W was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or of the sperm and eggs or of her artificial insemination.

• (3) The purpose referred to in subsection (1) is the purpose of enabling the man's particulars to be entered as the particulars of the child's father in a relevant register of births.

• (4) In the application of this section to Scotland, for any reference to a period of 42 days there is substituted a reference to a period of 21 days.

Embryo transferred after death of husband etc. who did not provide sperm

40

• (1) If—

• (a) the child has been carried by W as a result of the placing in her of an embryo,

• (b) the embryo was created at a time when W was a party to a marriage with a man or a civil partnership with a man,

• (c) the creation of the embryo was not brought about with the sperm of the other party to the marriage or civil partnership,

• (d) the other party to the marriage or civil partnership died before the placing of the embryo in W,

• (e) the other party to the marriage or civil partnership consented in writing (and did not withdraw the consent)—

• (i) to the placing of the embryo in W after his death, and

• (ii) to being treated for the purpose mentioned in subsection (4) as the father of any resulting child,

• (f) W has elected in writing not later than the end of the period of 42 days from the day on which the child was born for the man to be treated for the purpose mentioned in subsection (4) as the father of the child, and

• (g) no-one else is to be treated—

• (i) as the father of the child by virtue of section 35 or 36 or by virtue of section 38(2) or (3), or

• (ii) as a parent of the child by virtue of section 42 or 43 or by virtue of adoption,

then the man is to be treated for the purpose mentioned in subsection (4) as the father of the child.

• (2) If—

• (a) the child has been carried by W as a result of the placing in her of an embryo,

• (b) the embryo was not created at a time when W was a party to a marriage or a civil partnership but was created in the course of treatment services provided to W in the United Kingdom by a person to whom a licence applies,

• (c) a man consented in writing (and did not withdraw the consent)—

• (i) to the placing of the embryo in W after his death, and

• (ii) to being treated for the purpose mentioned in subsection (4) as the father of any resulting child,

• (d) the creation of the embryo was not brought about with the sperm of that man,

• (e) the man died before the placing of the embryo in W,

• (f) immediately before the man's death, the agreed fatherhood conditions set out in section 37 were met in relation to the man in relation to treatment proposed to be provided to W in the United Kingdom by a person to whom a licence applies,

• (g) W has elected in writing not later than the end of the period of 42 days from the day on which the child was born for the man to be treated for the purpose mentioned in subsection (4) as the father of the child, and

• (h) no-one else is to be treated—

• (i) as the father of the child by virtue of section 35 or 36 or by virtue of section 38(2) or (3), or

• (ii) as a parent of the child by virtue of section 42 or 43 or by virtue of adoption,

then the man is to be treated for the purpose mentioned in subsection (4) as the father of the child.

• (3) Subsections (1) and (2) apply whether W was in the United Kingdom or elsewhere at the time of the placing in her of the embryo.

• (4) The purpose referred to in subsections (1) and (2) is the purpose of enabling the man's particulars to be entered as the particulars of the child's father in a relevant register of births.

• (5) In the application of this section to Scotland, for any reference to a period of 42 days there is substituted a reference to a period of 21 days.

Persons not to be treated as father

41

• (1) Where the sperm of a man who had given such consent as is required by paragraph 5 of Schedule 3 to the 1990 Act (consent to use of gametes for purposes of treatment services or non-medical fertility services) was used for a purpose for which such consent was required, he is not to be treated as the father of the child.

• (2) Where the sperm of a man, or an embryo the creation of which was brought about with his sperm, was used after his death, he is not, subject to section 39, to be treated as the father of the child.

• (3) Subsection (2) applies whether W was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or of the sperm and eggs or of her artificial insemination.

Cases in which woman to be other parent

Woman in civil partnership at time of treatment

42

• (1) If at the time of the placing in her of the embryo or the sperm and eggs or of her artificial insemination, W was a party to a civil partnership with another woman or a marriage with another woman, then subject to section 45(2) to (4), the other party to the civil partnership or marriage is to be treated as a parent of the child unless it is shown that she did not consent to the placing in W of the embryo or the sperm and eggs or to her artificial insemination (as the case may be).

• (2) This section applies whether W was in the United Kingdom or elsewhere at the time mentioned in subsection (1).

Treatment provided to woman who agrees that second woman to be parent

43

If no man is treated by virtue of section 35 as the father of the child and no woman is treated by virtue of section 42 as a parent of the child but—

• (a) the embryo or the sperm and eggs were placed in W, or W was artificially inseminated, in the course of treatment services provided in the United Kingdom by a person to whom a licence applies,

• (b) at the time when the embryo or the sperm and eggs were placed in W, or W was artificially inseminated, the agreed female parenthood conditions (as set out in section 44) were met in relation to another woman, in relation to treatment provided to W under that licence, and

• (c) the other woman remained alive at that time,

then, subject to section 45(2) to (4), the other woman is to be treated as a parent of the child.

The agreed female parenthood conditions

44

• (1) The agreed female parenthood conditions referred to in section 43(b) are met in relation to another woman (“P”) in relation to treatment provided to W under a licence if, but only if,—

• (a) P has given the person responsible a notice stating that P consents to P being treated as a parent of any child resulting from treatment provided to W under the licence,

• (b) W has given the person responsible a notice stating that W agrees to P being so treated,

• (c) neither W nor P has, since giving notice under paragraph (a) or (b), given the person responsible notice of the withdrawal of P's or W's consent to P being so treated,

• (d) W has not, since the giving of the notice under paragraph (b), given the person responsible—

• (i) a further notice under that paragraph stating that W consents to a woman other than P being treated as a parent of any resulting child, or

• (ii) a notice under section 37(1)(b) stating that W consents to a man being treated as the father of any resulting child, and

• (e) W and P are not within prohibited degrees of relationship in relation to each other.

• (2) A notice under subsection (1)(a), (b) or (c) must be in writing and must be signed by the person giving it.

• (3) A notice under subsection (1)(a), (b) or (c) by a person (“S”) who is unable to sign because of illness, injury or physical disability is to be taken to comply with the requirement of subsection (2) as to signature if it is signed at the direction of S, in the presence of S and in the presence of at least one witness who attests the signature.

Further provision relating to sections 42 and 43

45

• (1) Where a woman is treated by virtue of section 42 or 43 as a parent of the child, no man is to be treated as the father of the child.

• (2) In England and Wales and Northern Ireland, sections 42 and 43 do not affect any presumption, applying by virtue of the rules of common law or section A1(2) of the Legitimacy Act 1976 or section 2(1)(a) of the Family Law Act (Northern Ireland) 2001, that a child is the legitimate child of the parties to a marriage or civil partnership.

• (3) In Scotland, sections 42 and 43 do not apply in relation to any child who, by virtue of any enactment or other rule of law, is treated as the child of the parties to a marriage or civil partnership.

• (4) Sections 42 and 43 do not apply to any child to the extent that the child is treated by virtue of adoption as not being the woman's child.

Embryo transferred after death of civil partner or intended female parent

46

• (1) If—

• (a) the child has been carried by W as the result of the placing in her of an embryo,

• (b) the embryo was created at a time when W was a party to a civil partnership with a woman or a marriage with a woman,

• (c) the other party to the civil partnership or marriage died before the placing of the embryo in W,

• (d) the other party to the civil partnership or marriage consented in writing (and did not withdraw the consent)—

• (i) to the placing of the embryo in W after the death of the other party, and

• (ii) to being treated for the purpose mentioned in subsection (4) as the parent of any resulting child,

• (e) W has elected in writing not later than the end of the period of 42 days from the day on which the child was born for the other party to the civil partnership or marriage to be treated for the purpose mentioned in subsection (4) as the parent of the child, and

• (f) no one else is to be treated—

• (i) as the father of the child by virtue of section 35 or 36 or by virtue of section 45(2) or (3), or

• (ii) as a parent of the child by virtue of section 42 or 43 or by virtue of adoption,

then the other party to the civil partnership or marriage is to be treated for the purpose mentioned in subsection (4) as a parent of the child.

• (2) If—

• (a) the child has been carried by W as the result of the placing in her of an embryo,

• (b) the embryo was not created at a time when W was a party to a marriage or a civil partnership, but was created in the course of treatment services provided to W in the United Kingdom by a person to whom a licence applies,

• (c) another woman consented in writing (and did not withdraw the consent)—

• (i) to the placing of the embryo in W after the death of the other woman, and

• (ii) to being treated for the purpose mentioned in subsection (4) as the parent of any resulting child,

• (d) the other woman died before the placing of the embryo in W,

• (e) immediately before the other woman's death, the agreed female parenthood conditions set out in section 44 were met in relation to the other woman in relation to treatment proposed to be provided to W in the United Kingdom by a person to whom a licence applies,

• (f) W has elected in writing not later than the end of the period of 42 days from the day on which the child was born for the other woman to be treated for the purpose mentioned in subsection (4) as the parent of the child, and

• (g) no one else is to be treated—

• (i) as the father of the child by virtue of section 35 or 36 or by virtue of section 45(2) or (3), or

• (ii) as a parent of the child by virtue of section 42 or 43 or by virtue of adoption,

then the other woman is to be treated for the purpose mentioned in subsection (4) as a parent of the child.

• (3) Subsections (1) and (2) apply whether W was in the United Kingdom or elsewhere at the time of the placing in her of the embryo.

• (4) The purpose referred to in subsections (1) and (2) is the purpose of enabling the deceased woman's particulars to be entered as the particulars of the child's other parent in a relevant register of births.

• (5) In the application of subsections (1) and (2) to Scotland, for any reference to a period of 42 days there is substituted a reference to a period of 21 days.

Woman not to be other parent merely because of egg donation

47

A woman is not to be treated as the parent of a child whom she is not carrying and has not carried, except where she is so treated—

• (a) by virtue of section 42 or 43, or

• (b) by virtue of section 46 (for the purpose mentioned in subsection (4) of that section), or

• (c) by virtue of adoption.

Effect of sections 33 to 47

Effect of sections 33 to 47

48

• (1) Where by virtue of section 33, 35, 36, 42 or 43 a person is to be treated as the mother, father or parent of a child, that person is to be treated in law as the mother, father or parent (as the case may be) of the child for all purposes.

• (2) Where by virtue of section 33, 38, 41, 45 or 47 a person is not to be treated as a parent of the child, that person is to be treated in law as not being a parent of the child for any purpose.

• (3) Where section 39(1) or 40(1) or (2) applies, the deceased man—

• (a) is to be treated in law as the father of the child for the purpose mentioned in section 39(3) or 40(4), but

• (b) is to be treated in law as not being the father of the child for any other purpose.

• (4) Where section 46(1) or (2) applies, the deceased woman—

• (a) is to be treated in law as a parent of the child for the purpose mentioned in section 46(4), but

• (b) is to be treated in law as not being a parent of the child for any other purpose.

• (5) Where any of subsections (1) to (4) has effect, references to any relationship between two people in any enactment, deed or other instrument or document (whenever passed or made) are to be read accordingly.

• (6) In relation to England and Wales and Northern Ireland, a child who—

• (a) has a parent by virtue of section 42, or

• (b) has a parent by virtue of section 43 who is at any time during the period beginning with the time mentioned in section 43(b) and ending with the time of the child's birth a party to a marriage or civil partnership with the child's mother,

is the legitimate child of the child's parents.

• (7) In relation to England and Wales and Northern Ireland, nothing in the provisions of section 33(1) or sections 35 to 47, read with this section—

• (a) affects the succession to any dignity or title of honour or renders any person capable of succeeding to or transmitting a right to succeed to any such dignity or title, or

• (b) affects the devolution of any property limited (expressly or not) to devolve (as nearly as the law permits) along with any dignity or title of honour.

• (8) In relation to Scotland—

• (a) those provisions do not apply to any title, coat of arms, honour or dignity transmissible on the death of its holder or affect the succession to any such title, coat of arms or dignity or its devolution, and

• (b) where the terms of any deed provide that any property or interest in property is to devolve along with a title, coat of arms, honour or dignity, nothing in those provisions is to prevent that property or interest from so devolving.

References to parties to marriage or civil partnership

Meaning of references to parties to a marriage

49

• (1) The references in sections 35 to 47 to the parties to a marriage at any time there referred to—

• (a) are to the parties to a marriage subsisting at that time, unless a judicial separation was then in force, but

• (b) include the parties to a void marriage if either or both of them reasonably believed at that time that the marriage was valid; and for the purposes of those sections it is to be presumed, unless the contrary is shown, that one of them reasonably believed at that time that the marriage was valid.

• (2) In subsection (1)(a) “judicial separation” includes a legal separation obtained in a country outside the British Islands and recognised in the United Kingdom.

Meaning of references to parties to a civil partnership

50

• (1) The references in sections 35 to 47 to the parties to a civil partnership at any time there referred to—

• (a) are to the parties to a civil partnership subsisting at that time, unless a separation order was then in force, but

• (b) include the parties to a void civil partnership if either or both of them reasonably believed at that time that the civil partnership was valid; and for the purposes of those sections it is to be presumed, unless the contrary is shown, that one of them reasonably believed at that time that the civil partnership was valid.

• (2) The reference in section 48(6)(b) to a civil partnership includes a reference to a void civil partnership if either or both of the parties reasonably believed at the time when they registered as civil partners of each other that the civil partnership was valid; and for this purpose it is to be presumed, unless the contrary is shown, that one of them reasonably believed at that time that the civil partnership was valid.

• (3) In subsection (1)(a), “separation order” means—

• (a) a separation order under section 37(1)(d) or 161(1)(d) of the Civil Partnership Act 2004 (c. 33),

• (b) a decree of separation under section 120(2) of that Act, or

• (c) a legal separation obtained in a country outside the United Kingdom and recognised in the United Kingdom.

Further provision about registration by virtue of section 39, 40 or 46

Meaning of “relevant register of births”

51

For the purposes of this Part a “relevant register of births”, in relation to a birth, is whichever of the following is relevant—

• (a) a register of live-births or still-births kept under the Births and Deaths Registration Act 1953 (c. 20),

• (b) a register of births or still-births kept under the Registration of Births, Deaths and Marriages (Scotland) Act 1965 (c. 49), or

• (c) a register of live-births or still-births kept under the Births and Deaths Registration (Northern Ireland) Order 1976 (S.I. 1976/1041 (N.I. 14)).

Late election by mother with consent of Registrar General

52

• (1) The requirement under section 39(1), 40(1) or (2) or 46(1) or (2) as to the making of an election (which requires an election to be made either on or before the day on which the child was born or within the period of 42 or, as the case may be, 21 days from that day) is nevertheless to be treated as satisfied if the required election is made after the end of that period but with the consent of the Registrar General under subsection (2).

• (2) The Registrar General may at any time consent to the making of an election after the end of the period mentioned in subsection (1) if, on an application made to him in accordance with such requirements as he may specify, he is satisfied that there is a compelling reason for giving his consent to the making of such an election.

• (3) In this section “the Registrar General” means the Registrar General for England and Wales, the Registrar General of Births, Deaths and Marriages for Scotland or (as the case may be) the Registrar General for Northern Ireland.

Interpretation of references to father etc. where woman is other parent

Interpretation of references to father etc.

53

• (1) Subsections (2) and (3) have effect, subject to subsections (4) and (6), for the interpretation of any enactment, deed or any other instrument or document (whenever passed or made).

• (2) Any reference (however expressed) to the father of a child who has a parent by virtue of section 42 or 43 is to be read as a reference to the woman who is a parent of the child by virtue of that section.

• (3) Any reference (however expressed) to evidence of paternity is, in relation to a woman who is a parent by virtue of section 42 or 43, to be read as a reference to evidence of parentage.

• (4) This section does not affect the interpretation of the enactments specified in subsection (5) (which make express provision for the case where a child has a parent by virtue of section 42 or 43).

• (5) Those enactments are—

• (a) the Legitimacy Act (Northern Ireland) 1928 (c. 5 (N.I.)),

• (b) the Schedule to the Population (Statistics) Act 1938 (c. 12),

• (c) the Births and Deaths Registration Act 1953 (c. 20),

• (d) the Registration of Births, Deaths and Marriages (Special Provisions) Act 1957 (c. 58),

• (e) Part 2 of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 (c. 49),

• (f) the Congenital Disabilities (Civil Liability) Act 1976 (c. 28),

• (g) the Legitimacy Act 1976 (c. 31),

• (h) the Births and Deaths Registration (Northern Ireland) Order 1976 (S.I. 1976/1041 (N.I. 14)),

• (i) the British Nationality Act 1981 (c. 61),

• (j) the Family Law Reform Act 1987 (c. 42),

• (k) Parts 1 and 2 of the Children Act 1989 (c. 41),

• (l) Part 1 of the Children (Scotland) Act 1995 (c. 36),

• (m) section 1 of the Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39), and

• (n) Parts 2, 3 and 14 of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)).

• (6) This section does not affect the interpretation of references that fall to be read in accordance with section 1(2)(a) or (b) of the Family Law Reform Act 1987 or Article 155(2)(a) or (b) of the Children (Northern Ireland) Order 1995 (references to a person whose father and mother were, or were not, married to each other at the time of the person's birth).

Parental orders

Parental orders

54

• (1) On an application made by two people (“the applicants”), the court may make an order providing for a child to be treated in law as the child of the applicants if—

• (a) the child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination,

• (b) the gametes of at least one of the applicants were used to bring about the creation of the embryo, and

• (c) the conditions in subsections (2) to (8A) are satisfied.

• (2) The applicants must be—

• (a) husband and wife,

• (b) civil partners of each other, or

• (c) two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.

• (3) Except in a case falling within subsection (11), the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born.

• (4) At the time of the application and the making of the order—

• (a) the child's home must be with the applicants, and

• (b) either or both of the applicants must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man.

• (5) At the time of the making of the order both the applicants must have attained the age of 18.

• (6) The court must be satisfied that both—

• (a) the woman who carried the child, and

• (b) any other person who is a parent of the child but is not one of the applicants (including any man who is the father by virtue of section 35 or 36 or any woman who is a parent by virtue of section 42 or 43),

have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.

• (7) Subsection (6) does not require the agreement of a person who cannot be found or is incapable of giving agreement; and the agreement of the woman who carried the child is ineffective for the purpose of that subsection if given by her less than six weeks after the child's birth.

• (8) The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the applicants for or in consideration of—

• (a) the making of the order,

• (b) any agreement required by subsection (6),

• (c) the handing over of the child to the applicants, or

• (d) the making of arrangements with a view to the making of the order,

unless authorised by the court.

• (8A) An order relating to the child must not previously have been made under this section or section 54A, unless the order has been quashed or an appeal against the order has been allowed.

• (9) For the purposes of an application under this section—

• (a) in relation to England and Wales —

• (i) “the court” means the High Court or the family court, and

• (ii) proceedings on the application are to be “family proceedings” for the purposes of the Children Act 1989,

• (b) in relation to Scotland, “the court” means the Court of Session or the sheriff court of the sheriffdom within which the child is, and

• (c) in relation to Northern Ireland, “the court” means the High Court or any county court ....

• (10) Subsection (1)(a) applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or the sperm and eggs or her artificial insemination.

• (11) An application which—

• (a) relates to a child born before the coming into force of this section, and

• (b) is made by two persons who, throughout the period applicable under subsection (2) of section 30 of the 1990 Act, were not eligible to apply for an order under that section in relation to the child as husband and wife,

may be made within the period of six months beginning with the day on which this section comes into force.

Parental orders: supplementary provision

55

• (1) The Secretary of State may by regulations provide—

• (a) for any provision of the enactments about adoption to have effect, with such modifications (if any) as may be specified in the regulations, in relation to orders under section 54 or 54A, and applications for such orders, as it has effect in relation to adoption, and applications for adoption orders, and

• (b) for references in any enactment to adoption, an adopted child or an adoptive relationship to be read (respectively) as references to the effect of an order under section 54 or 54A, a child to whom such an order applies and a relationship arising by virtue of the enactments about adoption, as applied by the regulations, and for similar expressions in connection with adoption to be read accordingly.

• (2) The regulations may include such incidental or supplemental provision as appears to the Secretary of State to be necessary or desirable in consequence of any provision made by virtue of subsection (1)(a) or (b).

• (3) In this section “the enactments about adoption” means—

• (a) the Adoption (Scotland) Act 1978 (c. 28),

• (b) the Adoption and Children Act 2002 (c. 38),

• (c) the Adoption and Children (Scotland) Act 2007 (asp 4), and

• (d) the Adoption (Northern Ireland) Order 1987 (S.I. 1987/2203 (N.I. 22)).

Amendments of enactments

Amendments relating to parenthood in cases involving assisted reproduction

56

Schedule 6 contains amendments related to the provisions of this Part.

General

Repeals and transitional provision relating to Part 2

57

• (1) Sections 33 to 48 have effect only in relation to children carried by women as a result of the placing in them of embryos or of sperm and eggs, or their artificial insemination (as the case may be), after the commencement of those sections.

• (2) Sections 27 to 29 of the 1990 Act (which relate to status) do not have effect in relation to children carried by women as a result of the placing in them of embryos or of sperm and eggs, or their artificial insemination (as the case may be), after the commencement of sections 33 to 48.

• (3) Section 30 of the 1990 Act (parental orders in favour of gamete donors) ceases to have effect.

• (4) Subsection (3) does not affect the validity of any order made under section 30 of the 1990 Act before the coming into force of that subsection.

Interpretation of Part 2

58

• (1) In this Part “enactment” means an enactment contained in, or in an instrument made under—

• (a) an Act of Parliament,

• (b) an Act of the Scottish Parliament,

• (c) a Measure or Act of the National Assembly for Wales, or

• (d) Northern Ireland legislation.

• (2) For the purposes of this Part, two persons are within prohibited degrees of relationship if one is the other's parent, grandparent, sister, brother, aunt or uncle; and in this subsection references to relationships—

• (a) are to relationships of the full blood or half blood or, in the case of an adopted person, such of those relationships as would subsist but for adoption, and

• (b) include the relationship of a child with his adoptive, or former adoptive, parents,

but do not include any other adoptive relationships.

• (3) Other expressions used in this Part and in the 1990 Act have the same meaning in this Part as in that Act.

Part 3 — Miscellaneous and General

Miscellaneous

Surrogacy arrangements

59

• (1) The Surrogacy Arrangements Act 1985 (c. 49) is amended as follows.

• (2) In section 1 (meaning of various terms), after subsection (7) insert—

(7A) “Non-profit making body” means a body of persons whose activities are not carried on for profit.

• (3) In section 2 (negotiating surrogacy arrangements on a commercial basis), in subsection (1)—

• (a) in paragraph (a) omit “or take part in”, and

• (b) after paragraph (a) insert—

(aa) take part in any negotiations with a view to the making of a surrogacy arrangement,

.

• (4) After subsection (2) insert—

(2A) A non-profit making body does not contravene subsection (1) merely because— (a) the body does an act falling within subsection (1)(a) or (c) in respect of which any reasonable payment is at any time received by it or another, or (b) it does an act falling within subsection (1)(a) or (c) with a view to any reasonable payment being received by it or another in respect of facilitating the making of any surrogacy arrangement. (2B) A person who knowingly causes a non-profit making body to do an act falling within subsection (1)(a) or (c) does not contravene subsection (1) merely because— (a) any reasonable payment is at any time received by the body or another in respect of the body doing the act, or (b) the body does the act with a view to any reasonable payment being received by it or another person in respect of the body facilitating the making of any surrogacy arrangement. (2C) Any reference in subsection (2A) or (2B) to a reasonable payment in respect of the doing of an act by a non-profit making body is a reference to a payment not exceeding the body's costs reasonably attributable to the doing of the act.

• (5) After subsection (5) of that section insert—

(5A) A non-profit making body is not guilty of an offence under subsection (5), in respect of the receipt of any payment described in that subsection, merely because a person acting on behalf of the body takes part in facilitating the making of a surrogacy arrangement.

• (6) After subsection (8) of that section insert—

(8A) A person is not guilty of an offence under subsection (7) if— (a) the body of persons referred to in that subsection is a non-profit making body, and (b) the only activity of that body which falls within subsection (8) is facilitating the making of surrogacy arrangements in the United Kingdom. (8B) In subsection (8A)(b) “facilitating the making of surrogacy arrangements” is to be construed in accordance with subsection (8).

• (7) In section 3 (advertisements about surrogacy), after subsection (1) insert—

(1A) This section does not apply to any advertisement placed by, or on behalf of, a non-profit making body if the advertisement relates only to the doing by the body of acts that would not contravene section 2(1) even if done on a commercial basis (within the meaning of section 2).

Exclusion of embryos from definition of “organism” in Part 6 of the EPA 1990

60

• (1) Section 106 of the Environmental Protection Act 1990 (c. 43) (meaning of “genetically modified organisms” etc.) is amended as follows.

• (2) In subsection (2), for “or human embryos” substitute “ , human embryos or human admixed embryos ”.

• (3) After subsection (3) insert—

(3A) For the purposes of subsection (2) above— (a) “human embryo” means an embryo within the meaning given in the provisions of the Human Fertilisation and Embryology Act 1990 (apart from section 4A) by virtue of section 1(1) and (6) of that Act, and (b) “human admixed embryo” has the same meaning as it has in that Act by virtue of section 4A(6) and (11) of that Act.

General

Orders and regulations: general provisions

61

• (1) Any power of the Secretary of State to make an order or regulations under this Act is exercisable by statutory instrument.

• (2) Any power of the Secretary of State to make an order or regulations under this Act may be exercised—

• (a) either in relation to all cases to which the power extends, or in relation to those cases subject to specified exceptions, or in relation to any specified cases or classes of case, and

• (b) so as to make, as respects the cases in relation to which it is exercised—

• (i) the full provision to which the power extends or any less provision (whether by way of exception or otherwise);

• (ii) the same provision for all cases in relation to which the power is exercised, or different provision as respects the same case or class of case for different purposes;

• (iii) any such provision either unconditionally, or subject to any specified condition.

• (3) Any power of the Secretary of State to make an order or regulations under this Act includes power to make such transitional, saving, incidental or supplemental provision as the Secretary of State considers appropriate.

Orders and regulations: parliamentary control

62

• (1) Orders made by the Secretary of State under this Act are subject to annulment in pursuance of a resolution of either House of Parliament.

• (2) Subsection (1) does not apply to—

• (a) an order to which subsection (3) applies, or

• (b) an order under section 68 (commencement).

• (3) No order under section 64 (power to make consequential and transitional provision etc.) which includes provision made by virtue of subsection (2) of that section may be made unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.

• (4) No regulations under section 55 (parental orders: supplementary provision) may be made unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament.

Meaning of “the 1990 Act”

63

In this Act, “the 1990 Act” means the Human Fertilisation and Embryology Act 1990 (c. 37).

Power to make consequential and transitional provision etc.

64

• (1) The Secretary of State may by order make—

• (a) any supplementary, incidental or consequential provision, and

• (b) any transitional or saving provision,

that the Secretary of State considers necessary or expedient for the purposes of, in consequence of, or for giving full effect to, any provision of this Act.

• (2) An order under this section may modify—

• (a) any enactment passed or made before the passing of this Act, and

• (b) any enactment passed or made before the end of the Session in which this Act is passed.

• (3) An order under this section which modifies an enactment in consequence of any provision of Part 2 may modify subsection (5) of section 53 (interpretation of references to father etc.).

• (4) An order under this section may provide for any provision of this Act which comes into force before any other provision comes into force to have effect, until that other provision has come into force, with specified modifications.

• (5) Before making an order under this section containing provision which would, if included in an Act of the Scottish Parliament, be within the legislative competence of that Parliament, the Secretary of State must consult the Scottish Ministers.

• (6) Before making an order under this section containing provision which would be within the legislative competence of the National Assembly for Wales if it were included in an Act of the Assembly, the Secretary of State must consult the Welsh Ministers.

• (7) Before making an order under this section containing provision which would, if included in an Act of the Northern Ireland Assembly, be within the legislative competence of that Assembly, the Secretary of State must consult the Department of Health, Social Services and Public Safety.

• (8) Nothing in this section limits the power under section 61 to include transitional or saving provision in a commencement order under section 68(2).

• (9) The modifications that may be made by virtue of subsection (2) are in addition to those that are made by any other provision of this Act.

• (10) In this section—

• “enactment” means an enactment contained in, or in an instrument made under—an Act of Parliament,an Act of the Scottish Parliament,a Measure of the National Assembly for Wales, orNorthern Ireland legislation;

• “modify” includes amend, add to, revoke or repeal, and references to “modifications” are to be read accordingly;

• “the Assembly Act provisions” has the meaning given by section 103(8) of the Government of Wales Act 2006 (c. 32).

Minor and consequential amendments

65

Schedule 7 contains minor and consequential amendments.

Repeals and revocations

66

Schedule 8 contains repeals and revocations.

Extent

67

• (1) Subject to the following provisions, this Act extends to England and Wales, Scotland and Northern Ireland.

• (2) Any amendment or repeal made by this Act has the same extent as the enactment to which it relates (ignoring extent by virtue of an Order in Council).

• (3) Subsection (2) is subject to paragraph 1(2) of Schedule 6.

• (4) Her Majesty may by Order in Council provide for any of the provisions of this Act to extend, with or without modifications, to the Bailiwick of Guernsey.

• (5) Subsection (4) does not authorise the extension to the Bailiwick of Guernsey of a provision of this Act so far as the provision amends an enactment that does not itself extend there and is not itself capable of being extended there in exercise of a power conferred on Her Majesty in Council.

• (6) Subsection (4) does not apply in relation to the extension to the Bailiwick of Guernsey of a provision which extends there by virtue of subsection (2).

• (7) Subsection (3) of section 61 applies to the power to make an Order in Council under this section as it applies to any power of the Secretary of State to make an order under this Act, but as if the references in that subsection to the Secretary of State were references to Her Majesty in Council.

Commencement

68

• (1) The following provisions of this Act come into force on the day on which this Act is passed—

• sections 61 to 64;

• section 67, this section and section 69.

• (2) The remaining provisions of this Act come into force in accordance with provision made by the Secretary of State by order.

Short title

69

This Act may be cited as the Human Fertilisation and Embryology Act 2008.

SCHEDULE 1

1

Schedule 1 to the 1990 Act (supplementary provision about Authority) is amended as follows.

2

After paragraph 4 (appointment of members) insert—