P v Q and F (Child: Legal Parentage)
[2024] EWCA Civ 878
P v Q & Ors
19 April 2024
[2024] EWFC 85 (B)
Family Court
Two moms tried to have a baby with a sperm donor. One mom secretly slept with the donor, and the baby was born. A judge decided the secret mom and the donor are the legal parents, not the married couple.
Key Facts
- •P and Q, a same-sex couple, conceived a child, X, using a sperm donor, F.
- •P and Q were married at the time of conception and birth.
- •P and Q initially used artificial insemination (AI), but P later had sexual intercourse (NI) with F during the conception window.
- •Q did not consent to NI.
- •P applied for a declaration that F is X's legal parent and Q is not.
- •DNA testing confirmed F's paternity.
- •The Attorney General did not intervene.
Legal Principles
Sections 34 and 42 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008) determine parenthood in cases of assisted reproduction.
HFEA 2008
The HFEA 2008 only applies where artificial insemination or the placing of embryos/sperm and eggs has occurred.
HFEA 2008, s.34
There is no common law presumption of parentage for same-sex couples.
Marriage (Same Sex Couples) Act 2013, Schedule 4, para. 2
The HFEA 2008 requires informed consent; the courts must respect the statutory scheme for regulating assisted reproduction.
AB v CD & Z Fertility Clinic [2013] EWHC 1418 (Fam), Re R (IVF: Paternity of Child) [2005] UKHL 33, Evans v Amicus Healthcare Ltd [2004] EWCA Civ 727
In parentage disputes, the court must determine the facts on a balance of probabilities.
Various cases discussed
Section 55A of the Family Law Act 1986 allows for declarations of parentage; the court may refuse to hear the application if it's not in the child's best interests.
Family Law Act 1986, s.55A
Section 58(1) of the Family Law Act 1986 states that a declaration shall be made unless it would be manifestly contrary to public policy.
Family Law Act 1986, s.58(1)
Outcomes
The court granted P's application.
The court found that Q did not consent to NI, and the method of conception was unclear. Therefore, the HFEA 2008 did not apply, and the common law principle that F is the legal parent prevailed.
F declared the legal parent of X.
Based on the balance of probabilities, the court determined that X was conceived either through natural insemination with F or that artificial insemination had not occurred as believed by the parties.
Q declared not to be the legal parent of X.
The court found that Q did not consent to natural intercourse, and the HFEA 2008 criteria for her legal parenthood were not met.