X & Anor (Declaration of Parentage), Re
[2023] EWFC 217
Y-Z (Declaration of Parentage), Re
21 March 2024
[2024] EWHC 649 (Fam)
High Court
Two moms used a clinic to have a baby. The clinic made a mistake with the paperwork. The judge looked at everything the moms signed and decided that they are both legal parents because that’s what they clearly wanted.
Key Facts
- •Y and Z, same-sex partners, sought a declaration of parentage for their child V (10 months old), conceived via donor sperm at a fertility clinic.
- •A clinic audit revealed missing paperwork (HFEA WP and PP forms) necessary to legally establish Y as V's second parent.
- •The clinic, Complete Fertility, acknowledged its error and apologized.
- •Y and Z had signed other consent forms indicating their intention to be joint legal parents.
- •The case involved interpreting existing legislation and case law regarding parental declarations in the context of fertility treatment.
Legal Principles
Each parent must give written notice to the clinic before embryo transfer of their intention for the non-birth parent to be the child's other legal parent (s43-44 Human Fertilisation and Embryology Act 2008).
Human Fertilisation and Embryology Act 2008
The court can rectify missing or incorrect HFEA forms if there's doubt about legal parenthood. Alternative documents acknowledging the intention to be a legal parent, if in writing and signed, can suffice.
Re A and others (2015) EWHC 2602 (Fam), Re A [50]-[52]
Documentation not explicitly mentioning legal parenthood can still suffice, if considered holistically within the context of the parties' understanding.
A, B and Bourn Hall Clinic [2021] EWHC 1750 (Fam)
Parenthood forms signed earlier can remain valid for later treatment cycles.
Re C (Declaration of Parentage Written Consent) [2019] EWHC 648 (Fam)
The court can correct mistakes in parenthood forms through rectification or construction.
Re A (ibid), Re G (2016) EWHC 729 (Fam)
Outcomes
A declaration of parentage was made confirming Y as V's second legal parent.
The court considered the totality of the evidence, including the signed consent forms indicating the couple's clear intention for joint legal parenthood and the incorrectly completed HFEA forms. The judge accepted that the forms, even signed the wrong way round, could be interpreted as valid consent, correcting the clinic's error.