Factual Background:

The case concerns the parental legal status of a child, V, born in 2023. V was conceived by Y and Z, a same sex couple, at a licensed clinic (‘the Clinic’) with donor sperm. V’s birth was registered recording Z as her mother and Y as her second legal parent. It was Y and Z’s intention that they would be joint legal parents. In this case, Y signed Human Fertilisation and Embryology Authority (HFEA) Form WP and Z signed HFEA Form PP which was the wrong way around. After an audit at the Clinic this issue was raised which enabled M to be V’s second legal parent.

 

It was noted that the applicants had signed all consent forms provided to them and that they believed at the time of the embryo transfer in the summer of 2022 that they had done all required of them to be treated as joint legal parents.

The relevant background of the case is outlined at paragraphs 5 to 8 with details of the administrative evidence at paragraphs 9 to 11 of the judgment.

 

Following directions made by the court on 6 February 2024 notice was given to the Clinic, the HFEA, the Attorney General and the Secretary of State for Health. None of these sought to be joined as a party.

 

On 14 March 2024, Theis J directed that the hearing listed on 21 March 2024 could be vacated and the application would b e determined on the papers. This procedure, as detailed in Re D and others (Practice: Declaration of parentage) [2017] EWHC 1782 (Fam) at [10], can be adopted in cases where there is no factual dispute and no other potentially interested parties sought to intervene.

 

This judgment acknowledges that there has been another recent case of where an audit of an HFEA licensed clinic has discovered that the relevant forms had not been completed, resulting in uncertainty about the parental legal status of a child born to individuals undergoing fertility treatment.

 

Applicable Law:

The relevant law is set out in s43-44 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008) which sets out that HFEA Form WP and HFEA Form PP must be completed giving the licensed clinic notice in writing of the parent’s mutual intention that the non-birth parent be treated as the child’s other legal parent.

 

Where a doubt has been raised about whether legal parenthood has been established this may be rectified by the court. The relevant principles are set out in Re A and others [2015] EWHC 2602 (Fam) at [50] – [52] whereby an alternative non-HFEA internal clinic consent form was accepted as satisfying the statutory requirements.

 

More recently, the case of A, B and Bourn Hall Clinic [2021] EWHC 1750 (Fam) at [35] – [36] made it clear that documentation which did not explicitly refer to legal parenthood could suffice. In this case it was accepted by Poole J that documents signed by the applicants, when taken as a whole and in the context of their broad understanding that it was possible for them both to be legal parents, could constitute valid consent to legal parenthood.