The Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018

• “section 54 parental order parent” means a person— on whose application the court has made an order under section 54 of the Human Fertilisation and Embryology Act 2008 in respect of a child; or who is an intended parent of a child by reference to an application or intended application for such an order;

• “section 54A parental order parent” means a person— on whose application the court has made an order under section 54A of the Human Fertilisation and Embryology Act 2008 in respect of a child; or who is an intended parent of a child by reference to an application or intended application for such an order.

• (3) In regulation 2 for “parental order parents” substitute “section 54 parental order parents and section 54A parental order parents”.

• (4) In regulation 3 for “parental order parents” substitute “section 54 parental order parents”.

• (5) In regulation 4 for “parental order parents” substitute “section 54 parental order parents”.

• (6) In Schedule 1, in the second column in the entry for section 1075G, in the insertion of Article (7), for “intended parent” to the end, substitute—

• “intended parent”, in relation to a child, means a person who, on the day of the child’s birth— applies, or intends to apply during the period of 6 months beginning with that day— with another person for an order under section 54 of the Human Fertilisation and Embryology Act 2008 in respect of the child; or as the sole applicant for an order under section 54A of that Act in respect of the child; and expects the court to make such an order in respect of the child; and
• “parental order” means an order under section 54 or 54A of the Human Fertilisation and Embryology Act 2008.

• (7) In Schedule 2, in the second column in the entry for section 112B, in the insertion of subsection (7A), from “intended parent” to the end, substitute—

• “intended parent” in relation to a child, means a person who, on the day of the child’s birth— applies, or intends to apply during the period of 6 months beginning with that day— with another person for an order under section 54 of the Human Fertilisation and Embryology Act 2008 in respect of the child; or as the sole applicant for an order under section 54A of that Act in respect of the child; and expects the court to make such an order in respect of the child; and
• “parental order” means an order under section 54 or 54A of the Human Fertilisation and Embryology Act 2008.

Paternity, Adoption and Shared Parental Leave (Parental Order Cases) Regulations (Northern Ireland) 2015

13

• (1) The Paternity, Adoption and Shared Parental Leave (Parental Order Cases) Regulations (Northern Ireland) 2015[^f00044] are amended as follows.

• (2) In regulation 2 (interpretation)—

• (a) for the definition of “intended parent” substitute—

• “intended parent”, in relation to a child, means a person who, on the day of the child’s birth— applies, or intends to apply during the period of 6 months beginning with that day— with another person for an order under section 54 of the Human Fertilisation and Embryology Act 2008 in respect of the child; or as the sole applicant for an order under section 54A of that Act in respect of the child; and expects the court to make such an order in respect of the child;

• (b) omit the definition of “parental order”;

• (c) omit the definition of “parental order parent”;

• (d) in the appropriate place insert—

• “section 54 parental order parent” means a person— on whose application the court has made an order under section 54 of the Human Fertilisation and Embryology Act 2008 in respect of a child; or who is an intended parent of a child by reference to an application or intended application for such an order;
• “section 54A parental order parent” means a person— on whose application the court has made an order under section 54A of the Human Fertilisation and Embryology Act 2008 in respect of a child; or who is an intended parent of a child by reference to an application or intended application for such an order;

• (3) For regulation 3 (application of the Leave Regulations to parental order parents), substitute—

(3) (1) The provisions of the Leave Regulations, in so far as they apply to paternity leave (adoption) apply to section 54 parental order parents with the modifications set out in Part 2 of these Regulations. (2) The provisions of the Leave Regulations, in so far as they apply to statutory adoption leave, apply to— (a) section 54 parental order parents; and (b) section 54A parental order parents, with the modifications set out in Part 2 of these Regulations.

• (4) In regulation 4 (application of the Curtailment Regulations to Parental Order Parents), after the second occasion the words “apply to” appear, insert “section 54”.

• (5) In regulation 5 (application of the SPL Regulations to Parental Order Parents), after the second occasion the words “apply to” appear, insert “section 54”.

• (6) In regulation 6 (application of regulation 2 of the Leave Regulations)—

• (a) for “parental order parents” substitute “section 54 parental order parents and section 54A parental order parents”;

• (b) in paragraph (a)(iii)—

• (i) for the definition of “intended parent”, substitute—

• “intended parent”, in relation to a child, means a person who, on the day of the child’s birth— applies, or intends to apply during the period of 6 months beginning with that day— with another person for an order under section 54 of the Human Fertilisation and Embryology Act 2008 in respect of the child; or as the sole applicant for an order under section 54A of that Act in respect of the child; and expects the court to make such an order in respect of the child;

• (ii) in the definition of “Parent A” after “means the” insert “section 54”;

• (iii) omit the definitions of “parental order” and “parental order parent”;

• (iv) in the relevant place insert—

• “section 54 parental order parent” means a person— on whose application the court has made an order under section 54 of the Human Fertilisation and Embryology Act 2008 in respect of a child; or who is an intended parent of a child by reference to an application or intended application for such an order;
• “section 54A parental order parent” means a person— on whose application the court has made an order under section 54A of the Human Fertilisation and Embryology Act 2008 in respect of a child; or who is an intended parent of a child by reference to an application or intended application for such an order.

; and

• (v) for the definition of “parental statutory declaration”, substitute—

• “parental statutory declaration” means a statutory declaration stating that the person making the declaration— has applied, or intends to apply— under section 54 of the Human Fertilisation and Embryology Act 2008 with another person; or under section 54A of that Act, alone, for a parental order under that section in respect of the child within the time limit for making such an application; and expects the court to make an order under that section on that application in respect of the child;

; and

• (c) in paragraph (c), before the words “parental order parent” on each occasion they appear, insert “section 54”.

• (7) In regulation 7 (application of regulation 3 of the Leave Regulations) after “apply to” insert “section 54”.

• (8) After regulation 7, insert—

(7A) Regulation 3 (application) of the Leave Regulations as they apply to section 54A parental order parents shall read as if— (a) paragraph (1) were omitted; (b) the words of paragraph (2) were— The provisions in relation to adoption leave under regulation 15 have effect in relation to children whose expected week of birth begins on or after the last day of the period of 120 days beginning with the day on which the Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 comes into force. (c) in paragraphs (3) and (6), the words “8th December 2002” were “on or after the day on which the Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 comes into force

• (9) In regulation 8 (application of regulation 4 of the Leave Regulations), after “apply to” insert “section 54”.

• (10) In regulation 9 (application of regulation 8 of the Leave Regulations)—

• (a) after “apply to” insert “section 54”; and

• (b) in paragraph (d)(iii), in the substituted paragraph (d), for “is a parental order parent” substitute “is a section 54 parental order parent”.

• (11) In regulation 10 (application of regulation 9 of the Leave Regulations), after “apply to” insert “section 54”.

• (12) In regulation 11 (application of regulation 10 of the Leave Regulations)—

• (a) after “apply to” insert “section 54”; and

• (b) in paragraph (3)(c) of the substituted regulation 10, before “parental order” insert “section 54”.

• (13) In regulation 12 (application of regulation 11 of the Leave Regulations), after “apply to” insert “section 54”.

• (14) In regulation 13 (application of regulation 15 of the Leave Regulations)—

• (a) after “apply to” insert “section 54”; and

• (b) in paragraph (a), in the substituted paragraph (2)(a), before “parental order” insert “section 54”.

• (15) After regulation 13, insert—

(13A) In regulation 15 (entitlement to ordinary adoption leave) of the Leave Regulations, as they apply to section 54A parental order parents— (a) paragraph (1)(a) shall read as if the word “conditions” were “condition”; (b) paragraph (2) shall read as if the words of that paragraph were— The condition referred to in paragraph (1) is that the employee is a child’s section 54A parental order parent. (c) paragraph (4) shall read as if the words of that paragraph were— An employee’s entitlement to leave under this regulation shall not be affected by the birth or expected birth of more than one child as a result of the same pregnancy.

• (16) In regulation 14 (application of regulations 16 and 17 of the Leave Regulations), for “parental order parents” substitute “section 54 parental order parents and section 54A parental order parents”.

• (17) In regulation 15 (application of regulation 18 of the leave regulations), for “parental order parents” substitute “section 54 parental order parents and section 54A parental order parents”.

• (18) In regulation 16 (application of regulation 20 of the Leave Regulations), after “apply to” insert “section 54”.

• (19) After regulation 16, insert—

(16A) In regulation 20 (additional adoption leave: entitlement duration and commencement) of the Leave Regulations as they apply to section 54A parental order parents, paragraph (1)(a) shall read as if the words of that sub-paragraph were “the employee is a section 54A parental order parent in respect of that child.”

• (20) In regulation 17 (application of regulation 22 of the Leave Regulations)—

• (a) after “apply to” insert “section 54”;

• (b) in paragraph (a) in the substituted paragraph (1) for sub-paragraphs (a) to (c) substitute—

(a) the employee does not apply for an order under section 54 of the Human Fertilisation and Embryology Act 2008 within the time limit set by subsection (3) of that section; and (b) the employee’s application for an order under that section for the child is refused, withdrawn or otherwise terminated without the order being granted and any time for an appeal or a new application has expired; or (c) the child dies.

• (c) in paragraph (b)(i) for “a parental order” substitute “an order under that section”; and

• (d) in paragraph (b)(ii) for “a parental order” substitute “an order under that section”.

• (21) After regulation 17, insert—

(17A) In regulation 22 (disrupted placement in the course of adoption leave) of the Leave Regulations as they apply to section 54A parental order parents— (a) paragraph (1) shall read as if the words of that paragraph were— This regulation applies where— (a) the employee does not apply for an order under section 54A of the Human Fertilisation and Embryology Act 1998 within the time limit set by subsection (2) of that section, (b) the employee’s application for an order under that section for the child is refused, withdrawn or otherwise terminated without the order being granted and any time limit for an appeal or new application has expired; or (c) the child dies. (b) paragraph (3) shall read as if— (i) in paragraph (a), the words from “the person with whom” to the end were “the time limit in section 54A(2) of the Human Fertilisation and Embryology Act 2008 for an application for an order under that section for the child expires;”; (ii) in paragraph (b), the words “paragraph (1)(b)(i)” to the end were “paragraph (1)(b), the week in which the employee’s application for an order under that section is refused, withdrawn or otherwise terminated without the order being granted;”; (iii) in paragraph (c), the words “paragraph (1)(b)(ii)” to the end were “paragraph (1)(c), the week during which the child dies”; and (c) paragraph (3A) shall be treated as omitted.

• (22) In regulation 18 (application of regulation 2 of the Curtailment Regulations) after “apply to” insert “section 54”.

• (23) In regulation 19 (application of regulation 3 of the Curtailment Regulations) after “apply to” insert “section 54”.

• (24) In regulation 20 (application of regulation 2 of the SPL Regulations) after “apply to” insert “section 54”.

• (25) In regulation 21 (application of regulation 3 of the SPL Regulations)—

• (a) after “apply to” insert “section 54”; and

• (b) in paragraph (c) in the appropriate place, insert—

• “intended parent”, in relation to a child, means a person who, on the day of the child’s birth— applies, or intends to apply during the period of 6 months beginning with that day, with another person for a parental order in respect of the child; and expects the court to make a parental order on that application in respect of the child;

• “parental order” means an order under section 54(1) of the Human Fertilisation and Embryology Act 2008;

• (26) In regulation 22 (application of regulation 20 of the SPL Regulations), after “apply to” insert “section 54”.

• (27) In regulation 23 (application of regulation 21 of the SPL Regulations), after “apply to” insert “section 54”.

• (28) In regulation 24 (application of regulation 23 of the SPL Regulations), after “apply to” insert “section 54”.

• (29) In regulation 25 (application of regulation 24 of the SPL Regulations), after “apply to” insert “section 54”.

• (30) In regulation 26 (application of regulation 25 of the SPL Regulations) after “apply to” insert “section 54”.

• (31) In regulation 27 (application of regulation 26 of the SPL Regulations), for the first occasion that the words “parental order” appear, substitute “section 54 parental order”.

• (32) In regulation 28 (application of regulation 28 of the SPL Regulations), after “apply to” insert “section 54”.

• (33) In regulation 29 (application of regulation 32 of the SPL Regulations), after “apply to” insert “section 54”.

• (34) In regulation 30 (application of regulation 34 of the SPL Regulations), after “apply to” insert “section 54”.

• (35) In regulation 31 (application of regulation 35 of the SPL Regulations), after “apply to” insert “section 54”.

• (36) In regulation 32 (application of regulation 36 of the SPL Regulations), after “apply to” insert “section 54”.

• (37) In regulation 33 (application of the Schedule to the SPL Regulations), after “apply to” insert “section 54”.

Human Fertilisation and Embryology (Mitochondrial Donation) Regulations 2015

14

• (1) The Human Fertilisation and Embryology (Mitochondrial Donation) Regulations 2015[^f00045] are amended as follows.

• (2) In regulation 10 (modification of certain enactments for cases where mitochondrial donation has occurred) for “18” substitute “18A”.

• (3) After regulation 18 insert—

(18A) In a case where this regulation has effect, section 54A of the Human Fertilisation and Embryology Act 2008 applies as if after subsection (1) there were inserted— (1A) For the purposes of this section, neither of the following is to be treated as a person whose gametes were used to create an embryo (“embryo E”)— (a) where embryo E is a permitted embryo by virtue of regulations under section 3ZA(5) of the 1990 Act, the person whose mitochondrial DNA (not nuclear DNA) was used to bring about the creation of embryo E; (b) where embryo E has been created by the fertilisation of an egg which was a permitted egg by virtue of regulations under section 3ZA(5) of the 1990 Act, the person whose mitochondrial DNA (not nuclear DNA) was used to bring about the creation of that permitted egg.

Judicial Pensions (Fee-paid Judges) Regulations 2017

15

• (1) The Judicial Pensions (Fee-paid Judges) Regulations 2017[^f00046] are amended as follows.

• (2) For paragraph (9) of regulation 40 (meaning of “eligible child”) substitute—

(9) In this regulation, “parental order” means an order made under section 54 or 54A of the 2008 Act.

Signed

Signed by the authority of the Secretary of State for Health and Social Care.

Jackie Doyle-Price — Parliamentary Under-Secretary of State, — Department for Health and Social Care — 20th December 2018

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

This Order is a remedial order made under section 10 of the Human Rights Act 1998. Its purpose is to remedy the incompatibility of section 54 of the Human Fertilisation and Embryology Act 2008 with the Convention Rights. Section 54 was found to be incompatible with those rights by the Court since the availability of a parental order under that section was limited to two people in a relationship akin to marriage. A parental order is an order which the court may make conferring parental responsibility on a person whose biological material has been used in the course of surrogacy arrangements.

This Order provides that one person may apply for a parental order and makes provision consequential on that change.

A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary of public sector is foreseen.

Footnotes

[^f00001]: 2008 c. 22.

[^f00002]: 1998 c. 42. Section 4 was amended by paragraph 66(2) of Schedule 9 to the Constitutional Reform Act 2005 (c. 4); paragraph 156 of Schedule 16 to the Armed Forces Act 2006 (c. 52); paragraph 43 of Schedule 6 to the Mental Capacity Act 2005 (c. 9) and paragraph 5(5) of Schedule 14 to the Crime and Courts Act 2013 (c. 22). The declaration of incompatibility was made in In the matter of Z (A Child) (No 2) on 16th May 2016 as set out in the judgment of 20th May 2016 ([2016] EQHC 1191 (Fam)).

[^f00003]: Schedule 2 was amended by S.I. 2000/2040.

[^f00004]: 1981 c. 54. Sub-paragraph (f) was inserted by S.I. 1991/1201, and paragraph (iv) was amended by paragraph 21 of Schedule 6 to the Human Fertilization and Embryology Act 2008. Other amendments have been made to sub-paragraph (f) which are not relevant to this Order.

[^f00005]: 1989 c. 24.

[^f00006]: Paragraph 5B was inserted by section 265(1) of the Pensions Act 2004 (c. 35) and amended by paragraph 3 of Schedule 7 to the Children and Families Act 2014 (c. 6) and S.I. 2016/413.

[^f00007]: S.I. 1989/1342 (N.I. 13).

[^f00008]: Paragraph 5B was inserted by Article 242 of the Pensions (Northern Ireland) Order 2005 (N.I. 1) and amended by paragraph 1(3) of Schedule 1 to the Work and Families Act (Northern Ireland) 2015 (c. 1).

[^f00009]: 1990 c. 37.

[^f00010]: Section 33A was inserted by section 25 of the Human Fertilisation and Embryology Act 2008 (c. 22).

[^f00011]: Section 35A was inserted by section 26 of the Human Fertilisation and Embryology Act 2008.

[^f00012]: 1991 c. 48; Cases B and B1 were substituted by paragraph 36 of Schedule 6 to the Human Fertilisation and Embryology Act 2008. Other amendments were made to section 26, which are not relevant to this Order.

[^f00013]: S.I. 1991/2628 (N.I. 23); article 27 was amended by paragraph 17 of Schedule 3 to the Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4).

[^f00014]: 1992 c. 4; section 171ZT was inserted by section 4 of the Employment Act 2002 (c. 22) and amended by section 122(6) of the Children and Families Act 2014 (c. 6).

[^f00015]: 1992 c. 7; Part 12ZB was inserted by the Employment (Northern Ireland) Order 2002 (S.I. 2002/2836 (N.I. 2); Part 12ZB has been applied with modification to parental order cases by the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (Application of Parts 12ZA, 12ZB and 12ZC to Parental Order Cases) Regulations (Northern Ireland) 2015 (S.I. 2015/90).

[^f00016]: 1995 c. 36; section 11(4) was amended by paragraph 9(2) of Schedule 2, and Schedule 3 to the Adoption and Children (Scotland) Act 2007 (asp 4) and paragraph 52 of Schedule 6 to the Human Fertilisation and Embryology Act 2008 (c. 22).

[^f00017]: S.I. 1995/755 (N.I. 2); article 8(4)(g) was substituted by paragraph 73 of Schedule 6 to the Human Fertilisation and Embryology Act 2008 (c. 22).

[^f00018]: 1996 c. 18. Section 11(4)(c) was amended by paragraph 52(2) of Schedule 6 to the Human Fertilisation and Embryology Act 2008 (c. 22).

[^f00019]: Section 57ZE was inserted by section 127(1) of the Children and Families Act 2014 (c. 6).

[^f00020]: Section 57ZG was inserted by section 127(1) of the Children and Families Act 2014 (c. 6).

[^f00021]: Section 75A was inserted by section 3 of the Employment Act 2002 (c. 22) and amended by paragraph 33 of Schedule 1 to the Work and Families Act 2006 (c. 18); sections 118, 121(1) and 122(1) of the Children and Families Act 2014 (c. 6); S.I. 2016/413; and applied with modifications by S.I. 2014/3095.

[^f00022]: Section 75B was inserted by section 3 of the Employment Act 2002 (c. 22) and amended by paragraph 34 of Schedule 1 to the Work and Families Act 2006 (c. 18); section 118(1) and (5) and 122(2) of the Children and Families Act 2014 (c. 6); and applied with modifications by S.I. 2014/3095.

[^f00023]: Section 75D was inserted by section 3 of the Employment Act 2002 (c. 22) and amended by section 122(3) of the Children and Families Act 2014 (c. 6).

[^f00024]: 1996 c. 27. Subsection (2)(h) of section 63 was substituted by paragraph 37 of Schedule 6 to the Human Fertilisation and Embryology Act 2008; other amendments have been made to section 63, which are not relevant to this Order.

[^f00025]: S.I. 1996/1919 (N.I. 16).

[^f00026]: Article 87ZE was inserted by section 15(2) of the Work and Families Act (Northern Ireland) 2015 (c. 1).

[^f00027]: Article 87ZG was inserted by section 15(2) of the Work and Families Act (Northern Ireland) 2015 (c. 1).

[^f00028]: Article 107AC was inserted by section 10(2) of the Work and Families Act (Northern Ireland) 2015 (c. 1).

[^f00029]: Article 107A was applied with modifications by the Employment Rights (Northern Ireland) Order 1996 (Application of Articles 107A, 107B, 107G, 107I, 112A and 112B to Parental Order Cases) Regulations (Northern Ireland) 2015 (S.R. 2015/100).

[^f00030]: S.I. 1998/1071 (N.I. 6); article 2(3)(f) was amended by paragraph 79 of Schedule 6 to the Human Fertilisation and Embryology Act 2008 (c. 22); there are other amendments to that article which are not relevant to this Order.

[^f00031]: 2012 c. 10; there are amendments to paragraph 12 of Schedule 1 which are not relevant to this Order.

[^f00032]: S.I. 1991/1210; article 2 was amended by paragraph 1(2) of Schedule 11 to the Constitutional Reform Act 2005 (c. 4) and S.I. 2010/986.

[^f00033]: S.I. 2005/3061; amended by S.I. 2010/2760; there are other amendments to these Regulations which are not relevant to this Order.

[^f00034]: S.I. 2008/1054; the table in Schedule 1 was substituted by S.I. 2014/877.

[^f00035]: S.I. 2010/2955; amended by S.I. 2013/3204; S.I. 2014/843; and S.I. 2014/954; there are other amendments to these Rules which are not relevant to this Order.

[^f00036]: S.I. 2014/840. Schedule 1 was amended, which are not relevant to this Order.

[^f00037]: S.I. 2014/2866.

[^f00038]: S.I. 2014/2934.

[^f00039]: S.I. 2014/3095.

[^f00040]: S.I. 2014/3096.

[^f00041]: S.R. 2015 No. 90.

[^f00042]: S.R. 2015 No. 92.

[^f00043]: S.R. 2015 No. 100.

[^f00044]: S.R. 2015 No. 101.

[^f00045]: S.I. 2015/572.

[^f00046]: S.I. 2017/522.