Guidance on the Legal Parenthood Provisions

Re: E & F (Assisted Reproduction: Parent) [2013] EWHC 1418 (Fam)

Article courtesy of Family Law Week

Cobb J considers the Human Fertilisation and Embryology Act 2008 and whether non-compliance with the statutory regime should result in a declaration that the partner was not the legal parent of the child.

AB and CD formed a same-sex relationship in 1997 and commenced cohabitation in 1998. They separated after 13 years, in June 2011.  By 2008 they had decided they wished to create a family and approached the Z Fertility Clinic which offered a complete range of infertility treatments and had a well-established donor sperm bank.

Thereafter there were a number of meetings between various professionals from the clinic and AB and CD. At the time of the initial meetings Part II of the Human Fertilisation and Embryology Act 2008 (“the HFEA 2008”) was not in force (coming into force on 6 April 2009). Two cycles of IUI treatment were undertaken by CD but were unsuccessful. The third, and successful, cycle of treatment was undertaken on 4 and 5 May 2009. As a result of the implementation of the new statutory provisions, AB and CD signed revised “consent forms” which purported to give their bilateral agreement to AB becoming the legal parent of any child born as a consequence of the treatment, in accordance with the new law. 

On 13 January 2010, twin boys, E and F were born. On 17 February 2010, AB and CD registered the boys’ birth, with AB being recorded as the ‘Parent’ and CD as the ‘Mother’. In light of AB’s status as ‘parent’, by the registration process she acquired parental responsibility under section 4ZA of the Children Act 1989 (Acquisition of parental responsibility by second female parent). AB played an integral role in the children’s lives until June 2011 when AB left CD. 

AB applied for contact with E and F. CD opposed this application and sought a declaration pursuant to s.55A of the Family Law Act 1986 that AB was not the parent of E and F as a result of non-compliance with the requirements of the 2008 Act. This preliminary issue is the subject of this judgment.  

Cobb J considered at length the evidence which related to the intentions of AB and CD as to AB’s status as a legal parents. He was satisfied that before, and during, CD’s pregnancy the couple had discussed AB’s proposed legal status in relation to any child born as a consequence of the treatment and accepted that they both acknowledged that they wished AB to have legal parental status, though their reasons for this differed.  

Cobb J considered the legal framework and in particular the relevant statutory code as enshrined in the HFEA 1990 and the HFEA 2008, augmented by a number of Codes/Guidance in force at the relevant time, and as interpreted by the courts in a number of reported cases. Cobb J identified seven general principles from the case law which he applied to the facts before him. In summary these were:-

1. The HFEA 2008 is to be construed and applied in a way that creates as much certainty as possible;

2. the “twin pillars” supporting Parliamentary regulation of this difficult field are intended to be: (a) the requirement for informed consent, capable of being withdrawn at any point prior to the transfer of the embryos to the woman receiving treatment; and (b) the focus on child welfare required by section 13(5) 

3. In circumstances where life is being created, where consequent legal relationships are created, there is a need for mutual, bilateral, understanding and agreement: 

4. When obtaining bilateral consent for treatment, (and for the creation of legal relationships), proper information needs to be provided to both parties making the commitment.  It is just as important that information is given to, and consent obtained from, the person who is not directly receiving the treatment – i.e. in the position of AB in a lesbian relationship – as the person being treated: 

5. It is essential that the courts pay proper respect to the scheme laid down by Parliament, and supported by the Human Fertilisation and Embryology Authority, for the regulation of assisted reproduction.  

6. The very significant legal relationship of parenthood should not be based on a fiction, and reliable safeguards need to be in place to ensure that this relationship is created in an appropriate way:  

7. Whereas “[t]he perspective of the clients is…to be treated as part of the relevant evidence” when the court is considering a question of fact which imports a subjective element (such as whether the parties were being “treated together” for the purposes of s.28(3) of the HFEA 1990), the ‘perspective’ or intention of the clients cannot otherwise trump the strict letter of the legislation.

Cobb J then addressed whether there had been effective consent for AB to be a legal parent. He carefully reviewed the applicable provisions of the HFEA 1990 and 2008 and the relevant Codes/Guidance in his judgment and concluded that the “Consent to Legal Parent” forms must be in forms WP and PP which must be provided to the “person responsible” at the clinic. Further, these consents must be given before the treatment takes place. 

Cobb J found that the forms were handed to the Clinic by AB and CD after the second day of insemination treatment of the third cycle. This therefore was ineffective to grant parentage status to AB.   

The parties invited Cobb J to consider the further issues which arose in this case and to provide guidance. In this regard Cobb J highlighted that in his judgement the obligation on the clinic to satisfy itself that it has obtained informed consent to treatment applies equally to its obligations to satisfy itself that informed consent is being given to the grant of parental status to the second woman.  

Cobb J stated that there is heavy emphasis in the Guidance on ensuring that licensed clinics provide sufficient information to enable couples to understand the nature and implications of the treatment (and therefore agreement) they are reaching.  In his view the clinic fell far short of delivering this for AB and CD. Therefore, Cobb J was satisfied that any consent to the grant of parentage was not in the circumstances of this case, truly ‘informed’ consent.

Cobb J found that the clinic did not comply with its licence conditions in providing treatment to AB and CD in that:

i) it had not provided sufficient information to both parties to enable them to make informed decisions about parentage issues at the time of the treatment (as above);

ii) it did not provide the parties with an opportunity to receive proper counselling about the step proposed prior to treatment.

iii) Inadequate records had been kept of the treatment and delivery of the WP / PP forms.

He concluded that the treatment provided to CD was not offered under the strict terms of “that licence” (s.43 HEFA 2008) and that, even if the consent forms had been delivered prior to the third cycle of treatment, they would have been ineffective to achieve their purpose.

AB sought to argue that she should be granted parental status for public policy reasons notwithstanding non-compliance with the statutory regime. Cobb J rejected this and stated that if there was any public policy argument engaged it pointed in favour of upholding the tightly regulated regime of assisted reproduction, not relaxing it.

Cobb J therefore granted a declaration that AB was not the parent of E and F and invited the prescribed officer of the Court to notify the Registrar General of this decision within 21 days (in accordance with section 55A(7) and rule 8.22 FPR 2010) so that the births of E and F can be re-registered. AB’s application for leave to make a contact application in respect of E and F was listed for directions.

The full judgement can be found here