NGA Law has secured a judgment from the High Court Family Division confirming that our clients, a same-sex couple with a child born through sperm donation in the UK, are the legal parents of their son.
The decision comes as a huge relief to the two mums, who relied on their fertility clinic to ensure they would both be legal parents and were horrified to be told just after the birth of their child that the non-birth mother could not be recorded on her baby’s birth certificate. The court’s decision enables their son’s birth certificate to be corrected and brings important personal resolution for their family.
However, the case has wider significance too, in expanding the law on parenthood.
To explain, UK assisted reproduction law has, since 2009, had a prescriptive set of rules for creating legal parenthood in sperm donation cases. These say that, for an unmarried partner to be treated as their child’s second legal parent, the parents have to give written signed notices to each other at a UK fertility clinic confirming their intention to both be legal parents before the embryo transfer or artificial insemination.
The 2009 laws represented a tightening up of the previous legislation in which unmarried couples simply had to be having ‘treatment together’ at a clinic to both be recognised as legal parents. It was thought, presumably, that a more rigorous system of signed notices would bring clarity and certainty.
However, the change in the law has proved problematic. Over the past six years there have been dozens of cases in which fertility clinics have made errors or lost the forms required for the system of notices and the problems have been discovered too late. In almost all of those cases the court has been able to resolve things and it has done so by making findings of fact (for example that forms recorded on checklists must have been signed but were then lost), by curing errors (for example where forms were misdated or signed the wrong way round) and by ruling that other consent forms which consented to legal parenthood could constitute a valid ‘notice’ in the stead of the official HFEA forms.
The reason this case is significant is because, unlike in all the previous cases, the clinic notes in this case did not include a single consent form signed by the parents which confirmed their agreement to the non-birth mother being a legal parent. The HFEA parenthood forms the parents were supposed to have signed were missing from their file and there was no checklist or other evidence to prove they had ever been given to the parents. In addition, although the parents signed various forms at the clinic, not a single one of those documents mentioned legal parenthood.
In making the decision to declare the non-birth mother her child’s legal parent, the court has therefore taken the law into new territory. Mr Justice Poole’s primary ruling was that it was likely the forms had been signed and lost and that is nothing new – similar rulings have been made in previous cases.
However, he also said – and this is what makes the case significant – that even if the forms were never signed, the fact that the parents expected to both be legal parents and signed other documents at the clinic (even documents which did not refer to legal parenthood) was enough to make them both legal parents. He said:
“The applicants identify seven documents and contend that the seven documents meet the requirements. The documents exist. They are in writing. They are signed and they are all signed before insemination treatment. I have already found that the applicants received information and counselling prior to treatment and the seven documents can be interpreted in that context. The applicants’ expectation was that the signing of these forms, and for the present I am assuming the alternative case that the WP and PP forms were not signed, had the desired effect; the effect they had been counselled about and given information about and which they plainly wished to bring about of making them both legal parents. It is fair to note that the documentation does not spell out consent to legal parenthood explicitly, but I am satisfied that, taken together, that is the effect of the seven documents.”
In short, it is now sufficient – to become a legal parent – for parents to have treatment at a clinic in the expectation that they will both be legal parents and to sign any documents at the clinic agreeing to that treatment. Although most parents will of course sign the required HFEA notice forms as envisaged by the law, parenthood can now be created through a much more general consent rather than a prescriptive set of signed notices giving specific consent to someone being a legal parent. It seems we have in effect come back full circle to the pre 2009 law and couples having ‘treatment together’.
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