Legal parenthood where a child is born after their parent has died

Where a child is born after their parent has died, there can be complex questions about whether the deceased parent is a legal parent, and what can be recorded on the child’s birth certificate.

Where a parent dies during pregnancy

Legal parenthood crystallises at the time of embryo transfer, artificial insemination or natural conception. Therefore, if a parent dies during a pregnancy their status as a legal parent remains intact and they will be the legal mother/father/parent for all legal purposes, including property rights and inheritance.

This includes the mother or father of a child conceived naturally who dies during the pregnancy. It also includes someone who is a legal parent under the Human Fertilisation and Embryology Act 2008, for example a father through sperm donation or a same-sex parent. Find out more about legal parenthood in donor conception cases.

If the parent who has died was married to (or in a civil partnership with) the child’s mother, he or she can be registered on the birth certificate straightforwardly after death. If the parent who has died was not married to the child’s mother, it may be necessary to seek a declaration of parentage from the court to enable his or her name to be registered on the birth certificate after death.

If the child is being carried by a surrogate the law is more complex because at birth the legal parents of the child will be the surrogate and her spouse.  However, in the key case of Re X (2020) in which an intended father died unexpectedly during the course of a surrogate pregnancy, his widow was permitted to make a parental order application on behalf of her deceased husband, so that her child’s re-issued birth certificate could record him as the legal father. Find out more about parental orders after surrogacy.

Where a parent dies before conception

Since eggs, sperm and embryos can be stored, it is possible for a child to be conceived after an intended parent has died. This is called posthumous conception.

Posthumous conception with stored sperm

When the laws on parenthood were first passed in 1990, they made clear that someone whose sperm was used to conceive a child posthumously would not be the child’s legal father. The reason for this was to prevent practical difficulties: an estate could never be wound up if someone died with sperm in storage since there would always remain the possibility that a legal child would be born in the future who might have a claim to a share of the assets.

However, in 2003 following a legal campaign by Diane Blood, it was recognised that men whose sperm was used to conceive a child posthumously should be acknowledged as the fathers of their children. The law was amended to allow someone whose sperm was used to conceive a child posthumously to be named as the father on the child’s birth certificate.

Under the current law, this means that if a child is conceived with someone’s sperm after their death (whether through artificial insemination or embryo transfer), that person can be named on the child’s birth certificate as the father if the birth mother makes a special written election within 42 days of the birth. The biological father will not, however, be the legal father for any purpose other than naming him on the birth certificate.

Posthumous conception with donor sperm

The rules also cover some parents through sperm donation, provided that embryos were created prior to the death of the intended parent.  In such cases, if the embryos were created before the intended parent died but then transferred to the birth mother afterwards, the birth mother can register the intended parent who would otherwise have been a legal parent as the father (if male) or second legal parent (if female). The birth mother and her partner must have been, at the date of embryo creation, either married/civil partners or have both properly signed the clinic forms to nominate her partner as a legal parent.

Again, a written election must be made by the birth mother within 42 days of the birth and the birth mother’s partner will only be the father/parent for the purposes of being named on the birth certificate and not for any other legal purpose.

Posthumous conception with stored eggs

If stored eggs or embryos are used to conceive a child after the egg provider has died, then whoever gives birth to the child (whether a surrogate or the egg provider’s surviving partner) will be the child’s legal mother.

If the birth mother is carrying her partner’s biological child, and wants to record her deceased partner on the birth certificate as the second legal parent, it may be possible to do so if embryos were created before her partner’s death and if she and her partner were either married, civil partners or had signed the correct parenthood nomination forms when the embryos were created. As with other forms of posthumous conception, her partner will be a parent for the purposes of the birth registration but not for any other legal purpose.

If the person carrying the pregnancy is a surrogate, then the intended parents would normally apply to the court for a parental order after the birth to become the legal parents and to have the birth certificate re-issued in their names.  If the surviving intended parent is the child’s biological parent he or she can apply for a sole parental order, but it is not yet known whether it would be possible to make a joint application for a parental order so that the egg provider who has died can also be a legal parent after their death.  Such a ruling would take the law one step further than the ruling in Re X (2020). Find out more about parental orders after surrogacy.

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