Declaration of Parentage

When a child is conceived in a licensed clinic there are strict rules that have to be complied with to confirm the status of legal parent on the second parent. This requires the licensed clinic to complete all necessary paperwork correctly particularly to ensure that all involved adults are giving informed consent to the process and giving notice to the clinic of who is intended to be the second legal parent. When the paperwork is not completed correctly it is necessary to apply to the Court for a Declaration of Parentage otherwise the legal status of the second parent is not established. An example of this in action arose in Y-Z (Declaration of Parentage) [2024] EWHC 649 (Fam) https://www.bailii.org/ew/cases/EWHC/Fam/2024/649.html

Case Details

This case involves an application for a declaration of parentage under section 55A of the Family Law Act 1986. The application was made by Y and Z regarding their child V, who was 10 months old at the time of judgment. V was conceived at Complete Fertility, a licensed fertility clinic, using donor sperm. The issue arose because the clinic failed to complete the proper paperwork that would have enabled Y to be V's second legal parent. The judgment was handed down on 21st March 2024 by Mrs Justice Theis DBE in the Family Divisionof the High Court.

Background

Y and Z are same-sex partners who have lived together since 2017. They approached the clinic in 2021,intending to start a family together with both being joint legal parents. Initially, embryos created using Z's eggs and donor sperm were transferred to Y, but after four unsuccessful attempts, the fifth embryo was transferred to Z, resulting in V's birth. After V's birth, the couple registered Z as the mother and Y as the second legal parent. However, the clinic later informed them that an audit revealed their medical file lacked the required HFEA WP and PP forms nominating Y as V's second legal parent. The file contained forms from May 2021 nominating Z as the second legal parent of any child carried by Y, but no updated forms reflecting the change in circumstances.

Legal Framework

Under sections 43-44 of the Human Fertilisation and Embryology Act 2008, each parent must give written notice to the licensed clinic before embryo transfer of their mutual intention for the non-birth parent to be treated as the child's legal parent. The court can rectify issues arising from missing or incorrect forms where doubt exists about legal parenthood being properly established. Previous cases have established that alternative documentation can satisfy the statutory requirements if they demonstrate informed consent to legal parenthood in writing and signed before conception.

Evidence

The applicants relied on the WP and PP forms they signed in May 2021 (albeit in the wrong order) and numerous other consent forms demonstrating their consistent involvement as partners in treatment. These included HFEA Consent to Disclosure forms, Pre-conception questionnaire, HFEA Consent to Donating Eggs form, and multiple treatment consent forms signed by both applicants. Ms Saran from the clinic confirmed that the couple clearly intended Y to be the legal parent of any child born from Z's treatment.

Judgment

Mrs Justice Theis determined that the WP and PP Forms signed by the applicants in May 2021 could be read as validly conferring legal parenthood on Y, even though they were signed the wrong way around. The court has established power to correct errors in documentation. The judge was satisfied that all evidence supportedthe conclusion that both Y and Z intended to be legal parents of any child conceived. The declaration of parentage was granted, confirming Y as V's second legal parent.