High Court rules both same-sex parents are legal parents after fertility clinic error – important new NGA case on legal parenthood

August 23, 2021

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.

What was the case about?

Our clients were a female same-sex couple who had conceived a child through sperm donation at a UK fertility clinic.  They thought they were having treatment on the basis that they would both their child’s legal parents, but in fact the fertility clinic never gave them the forms they needed to sign to create the non-birth mother’s legal parenthood.  Since these forms have to be signed before artificial insemination or embryo transfer to be valid, the non-birth mother was left with her legal parenthood in jeopardy.

Taking the law further for parents through sperm donation

This is not the first time the court has had to resolve errors at fertility clinics, but this case has taken the law further than ever before. Over the past six years there have been dozens of cases in which fertility clinics have made errors with parenthood forms.  In almost all the court has been able to resolve things 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) or by ruling that other documents on which the parents had consented to legal parenthood could constitute a valid ‘notice’ in the stead of the official HFEA forms.

However, in every case there was something in writing which the court could rely on. In this case, for the first time, there was not.  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.

And this is significant. UK 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.

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. 

What did the judge say?

“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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