As I understand things, turning stem cells
into sperm is more feasible than turning them into egg cells (as egg cells are
the largest cells in the body, it would involve the stem cell becoming bigger
rather than smaller and it might be
IMPOSSIBLE – I am not Robert Winston) but it may be that once this
technology advances, it will advance quickly.
Assuming that a woman can
create sperm cells and a man can create egg cells, that does create the ability
for a same sex couple to produce a baby that is one where both are genuine
biological and genetic parents.
And one can see that there
would be a target audience for that facility, and clinics who would want to
But if a child is conceived
in this way (let’s dub it 'Stem-Swap Conception') are the couple then the
child’s legal parents?
The HFEA 2010 establishes
that legally, a mother is the person in whose womb the child grows (it doesn’t matter if the egg cell that made
the child is from another woman – or indeed in our theoretical discussion a
'Section 33 - Meaning of "mother"
(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.'
So, we have as our couple
Bella and Alice. They decide to undertake a Stem-Swap Conception. Alice has her stem cells converted to sperm
cells, and impregnates Bella with them.
They are both the biological and genetic parents. The LEGAL mother is
Bella, as she carried the baby to term.
Where does that leave
Alice? If she’s not the mother, is she
It is s 37 of the HFEA 2010 that sets
out the various situations in which a person becomes the father of a baby; but
each of them specifies that the father must be a man. So, Alice won’t be the
father (which is probably a relief to her).
If Alice and Bella were in a
civil partnership or marriage, and Alice consented to the insemination then
Alice will acquire Parental Responsibility as a result of s 42 of the HFEA 2008:
'Woman in civil partnership at time of treatment
(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, then subject to section 45(2) to (4), the other party to the
civil partnership 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).'
If they weren’t in a civil
partnership, then they can still agree that Alice will have PR by virtue of s 43 of the HFEA 2008 (particularly since we can be
damn sure that no man will be treated as a father of the child):
'Section 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.'
Moving now to Jacob and
Edward. Jacob has the easy task and
provides his sperm for an artificial insemination of a surrogate mother. Edward
has his stem cells converted to an egg cell and has his egg cell implanted into
the surrogate mother for Jacob’s sperm to fertilise. (That must be a Stem-Swap Conception
The surrogate mother has PR
and is the legal mother (s 33 of the HFEA 2010 – she carries the baby, she’s the legal
mother even though she has no genetic relationship with the child).
Edward and Jacob had the
sense not to choose a surrogate mother who was married (because if not, then
the husband would be the legal father).
Jacob is the legal father
PROVIDED there was a written agreement between himself and the surrogate mother
'Section 37 - The agreed fatherhood conditions
(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,
(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.'
Edward will not be, as a
matter of law either the mother (because he didn’t carry the child in his
non-existent womb) or the father (because he didn’t provide the male gametes).
So he would need a Parental
Order, under s 54 of the HFEA 2008:
(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 (8) are
(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.'
If your head isn’t already
hurting from all of this (and remember that the High Court has declared that
all family lawyers need to be capable of advising on the HFEA and it is not a
specialised area(!)) we are about to
kick it up a notch.
The possibility exists to
freeze sperm cells for use after death, and the HFEA makes various provisions
for that, and there’s been a lot of litigation about consent and whether the
right forms are filled in, and timescales. That litigation is mind-bendingly
hard. But like I said, we’re kicking it
up a notch.
All of the HFEA provisions
about the use of sperm cells after the death of the donor, are expressly about
the donor of such cells being
a man. [Oddly,
this provision, which probably looked at the time to be a redundant inclusion,
might potentially become important if women can produce sperm cells by genetic
manipulation of their stem cells.]
So the HFEA doesn’t cover the
use of sperm cells created by a woman AFTER her death. Nor does it cover the
conversion of stem cells provided by a woman into sperm cells and then use,
after her death.
Given that this technology
might exist in the future, might women with a terminal illness who are in a
same-sex partnership want to donate their stem-cells and leave instructions
that they be converted to sperm cells once this is possible? And thereafter use
those sperm cells to impregnate their partner? And would we need regulation
Apologies for anyone who now has a headache.
Andrew has been shortlisted for the 2014 Family Law Awards - Commentator of the Year for the second year running. The Awards Ceremony will take place at The Brewery, 8 October.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.