Leeds Teaching Hospitals NHS Trust v A & Ors

Legal parentage under the Human Fertilisation and Embryology Act 1990 depends on statutory consent and treatment conditions. A husband’s general consent to assisted reproduction does not establish consent to an embryo created with another man’s sperm, particularly where the error is fundamental and contrary to signed consents. The statutory treatment-together provision does not extend to husbands already governed by the husband-specific provision. Where the statutory provisions do not apply, Convention rights may be addressed proportionately through residence, parental-responsibility and adoption orders. Biological truth may properly be preserved where compatible with the children’s welfare.

The NHS Trust sought declarations concerning the legal parentage of twins born to Mrs A after IVF treatment. Because of a laboratory error, Mr B’s sperm had been used with Mrs A’s eggs, although the couples had intended treatment using their own gametes. Mrs A was the biological mother and Mr B the biological father. The twins lived with Mr and Mrs A, who wished Mr A to be recognised as their legal father.

The court considered whether sections 28 and 29 and Schedule 3 of the Human Fertilisation and Embryology Act 1990 applied, and whether any resulting interference with article 8 rights required a declaration of incompatibility.

1. Section 28(2). The husband-specific presumption did not apply. Consent was consent to the actual insemination or placing of the embryo. Mr A had consented to treatment using his wife’s eggs and his own sperm, but not to the use of named or anonymous donor sperm. The substitution of Mr B’s sperm was a fundamental error going to the root of the process.
2. Section 28(3). The provision was not intended to apply to husbands, whose position was addressed by section 28(2). In any event, the parties were not receiving treatment together within the statutory meaning. The fundamental use of another man’s sperm vitiated that concept. The court followed the reasoning of Wilson J in U v W [1997] 2 FLR 282.
3. Consent. Mr B had not consented to use of his sperm with Mrs A’s eggs. Section 28(6) therefore did not alter the conclusion.
4. Convention rights. Article 8 was engaged for Mr and Mrs A and the twins. No declaration of incompatibility was required under section 4 of the Human Rights Act 1998. Residence and other section 8 orders under the Children Act 1989, and potentially adoption under the Adoption Act 1976, could protect the family. The interference was lawful, pursued protection of the twins’ rights and welfare, and was proportionate.
5. The twins’ welfare and rights were best served by preserving their secure family life with Mr and Mrs A and the biological truth of their paternal identity. No declaration was made that Mr A was the legal father. No declaration of incompatibility was made. Mr B’s application under section 55A of the Family Law Act 1986 was adjourned generally.

First-instance decision. The judgment records earlier Family Division proceedings, including a short judgment dated 4 November 2002 reported at [2003] 1 FLR 412.