Non-genetic parentage under the HFEA 2008
Where a child is conceived with donor sperm, parentage is normally determined under the Human Fertilisation and Embryology Act 2008. S.33 provides that the woman who bears the child will be the mother, regardless of whether the egg was hers or came from a donor. If she is married or in a civil partnership, her spouse or civil partner will be the other parent, unless it is shown that the spouse or civil partner did not consent to the treatment – s.35 and s.42. Otherwise, ss.36 and 37 provide that a man (who will normally be the mother’s partner) will be the child’s father if:
(i) the treatment is provided by a clinic in the UK under a licence from the HFE Authority; and
(ii) both parties give written notice to the clinic consenting to such parentage.
Ss.43 and 44 make similar provision for a woman (instead of a man) to be the other parent.
The effect of s.44 was considered by Cobb J in AB v CD & Z Fertility Clinic  EWHC 1418 (Fam). He held that the notice had to be given before the treatment, which had not occurred in that case. He also held that there should be informed consent and that there should be strict compliance with the conditions of the clinic’s licence. This applies equally to fathers with respect to s.37.
This decision has two serious effects for families where the parents believe they both have legal status. Firstly, it had led to the HFE Authority and clinics conducting a review of procedures in past cases which has revealed many cases where the notices required were missing or imperfectly executed, casting doubt on the legal status of many fathers and female second parents. Secondly, it paves a broad road for either parent to challenge the legal parenthood of the father or female second parent. This might commonly occur upon separation, where a father is seeking to avoid liability for child support, or a mother is seeking to reduce the other parent’s involvement with the child. Parents commonly do not remember what notices they have signed and have a very imperfect idea of the legal consequences of parenthood and of the notices they sign. Clinics frequently fail to comply fully with the detailed requirements of their licence or mislay documents that show compliance (eg records of counselling or the notices themselves). These matters might come to light at any time during a child’s life, eg upon the supposed parent dying intestate.
In X v Y v St Bartholomew's Hospital Centre for Reproductive Medicine (Assisted Reproduction: Parent)  EWFC 13 , Theis J recognised that the absence of a notice does not mean that it was not executed or served. In this case, she was prepared to find on the balance of probabilities that the clinic had simply mislaid it. Although this was itself a breach of a requirement from the HFE Authority, it was not sufficient to take the treatment outside the terms of the licence. She also went further and noted that the further observations of Cobb J in AB v CD were obiter. She expressly left the door open to a less strict interpretation of s.37 and s.42, if necessary by reading down in accordance with the inferred intention of Parliament and/or ECHR Article 8 following Re X (A Child)(Surrogacy: Time Limit)  EWHC 3135 (Fam). This might conceivably even extend to dispensing with the requirement of notice.
Parents in other cases where a notice is missing will still need to apply for a declaration of parentage under FLA 1986, s.55A, as there will need to be a finding that the notice was served but mislaid. If the court cannot make such a finding, the argument will need to be made to “read down” the requirement of notice. Similarly for other cases, where the parents were not given an opportunity for counselling or appropriate legal information in accordance with the conditions of the licence or where it appears that their consent might be regarded as imperfect. Such cases will be more straightforward where the parents are still together and presenting a united front.
Parliament may need to consider whether to create a public register for non-genetic parents rather than trust licensed clinics to comply with instructions and keep the required records. In the meantime, much remains to be done to clarify the law and to create more certainty for parents and children about their legal status.
20 February 2015