Court Rules in Favor of Declaration of Legal Parentage Based on Signed Consent Forms in Assisted Reproductive Treatment Case

Citation: [2023] EWFC 217
Judgment on

Introduction

The case of X & Anor (Declaration of Parentage), Re: EWFC 217 ([2023] EWFC 217) is a significant judicial decision concerning the declaration of legal parentage in the context of assisted reproductive treatment involving donor gametes. This case is instrumental in illustrating how courts interpret statutory requirements related to consent forms for the establishment of legal parenthood and when alternative documentation can be sufficed. It raises important considerations for fertility clinics regarding documentation and consent procedures.

Key Facts

In the case at hand, X and Z, an unmarried couple, applied for a declaration of parentage for their child, Y, born following fertility treatment involving donor gametes. An audit at the licensed clinic, Herts and Essex Fertility Centre, revealed an absence of the required Form PP in X’s medical records. This prompted concerns over X’s legal status as Y’s father. The couple expressed shock and distress upon learning about this administrative oversight after enduring a lengthy fertility treatment journey.

The evidence presented included statements from X and Z, detailing their intentions and understanding that X would be the legal father, and from Mr. Ogutu, a medical director at the Clinic. Although it was unclear whether Form PP was signed prior to conception, other internal clinic consent forms, as well as a validly signed Human Fertilisation and Embryology Authority (HFEA) Form WP by Z, indicated X’s consent to be the legal father.

The application was served on relevant parties, including the Clinic, the HFEA, the Attorney General, and the Secretary of State for Health. Upon review of the evidence and submissions, and without opposition, the court determined that the matter could be resolved on the papers.

The case centers on the interpretation of sections 36-37 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008), which set out the consent requirements for establishing legal parenthood. It emphasizes that consent must be in writing and provided prior to embryo transfer.

The precedents of Re A (2015) EWHC 2602 (Fam) and A, B and Bourn Hall Clinic [2021] EWHC 1750 (Fam) play a pivotal role. Re A underscored that alternative internal clinic consent forms (Form IC) can meet statutory requirements if they convey informed consent to legal parenthood. A, B and Bourn Hall Clinic reinforced this principle, demonstrating that even without explicit reference to legal parenthood, documentation signed by the applicants can suffice if it reflects a clear intention to establish legal parenthood.

Applying these principles, Mrs Justice Theis DBE found that the internal clinic consent forms signed by X coupled with the HFEA Form WP by Z, satisfied the requirements under sections 36-37 HFEA 2008. The judgment stresses the importance of fertility clinics having robust systems in place to avoid similar situations from reoccurring.

Outcomes

The court declared that, based on the signed consent forms and the intentions expressed by X and Z, the statutory requirements were satisfied, thereby confirming X as Y’s legal father. The case underscores that a combination of documents can establish legal parentage when the normally required consent forms are incomplete or absent, provided there is clear evidence of intention and informed consent.

Conclusion

The case of X & Anor (Declaration of Parentage), Re: EWFC 217 is a clear example of how the judiciary navigates the intricacies of assisted reproductive technologies and the legality of parentage. It highlights the necessity for fertility clinics to ensure meticulous documentation processes and for prospective parents to understand the significance of their consent. The court’s reliance on established precedents solidifies the notion that substance over form takes precedence in establishing legal relationships in the context of assisted conception.

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