In re D (a child appearing by her guardian ad litem) (Respondent)

Under section 28(3) of the Human Fertilisation and Embryology Act 1990, an unmarried man becomes the legal father of a child conceived with donor sperm only if treatment services were being provided for him and the mother together when the embryo was placed or insemination occurred.

This is a question of fact determined from all the evidence. The perceptions of the couple and the licensed clinic are relevant, but neither has statutory priority. An earlier acknowledgement by the man is not conclusive, and there is no rule that treatment once provided together continues until express withdrawal. The evidence must establish a continuing joint enterprise at the material time.

The mother conceived a child through IVF using an embryo created with donor sperm. Her former partner had participated in the earlier stages of fertility treatment and signed acknowledgements that they were being treated together. Their relationship ended before the successful embryo replacement, although the clinic was not informed until later.

Hedley J held that the original course of joint treatment continued until an express withdrawal or a review by the clinic and declared the former partner to be the father. The Court of Appeal allowed the mother's appeal in [2003] EWCA Civ 182, reported at [2003] Fam 129.

The central issue was whether, at the time of the successful embryo replacement, treatment services were being provided for the mother and her former partner together within section 28(3) of the Human Fertilisation and Embryology Act 1990.

1. Appeal dismissed unanimously. Lord Walker delivered the leading speech, with which Lord Nicholls, Lord Steyn and Lord Hoffmann agreed. Lord Hope reached the same conclusion in a separate speech. The Court of Appeal was right to set aside the declaration of paternity.

2. Per Lord Walker, section 28(3) of the Human Fertilisation and Embryology Act 1990 fixes the material time as the placement of the embryo or sperm and eggs, or the artificial insemination, which resulted in the child's birth. At that time, treatment services must have been provided for the woman and the man together. Earlier participation or consent does not itself satisfy the provision.

3. Per Lord Walker, the statutory expression requires more than the man's consent to his partner's treatment. His conduct must make the treatment a joint enterprise. Whether that relationship exists is a factual question answered from all the evidence. The clinic's perception has a relevant mental element, but it cannot be decisive where it rests partly on deception and the remaining evidence shows that the joint enterprise had ended.

4. Per Lord Walker, the certainty offered by a rule of “once together, always together” could not justify creating legal parenthood by fiction. The legal relationship is momentous for the man, the child and the wider family. An earlier written acknowledgement therefore remains evidence but does not continue conclusively until expressly withdrawn or reviewed by the clinic.

5. Lord Hope likewise held that the perspectives of both the recipients and the clinic form part of the evidence. Neither has priority under the statute. The judge must examine all the evidence to decide whether the statutory test was satisfied at the relevant date.

6. Per Lord Walker, Article 8 of the European Convention on Human Rights did not assist the former partner. A claim to family life could not assume the family tie whose legal existence remained to be established.

7. Lord Walker observed that licensed clinics should use more robust safeguards. An unmarried male partner's acknowledgement should be renewed regularly during protracted treatment and, in any event, before embryo replacement.

1. House of Lords: Dismissed the former partner's appeal unanimously and affirmed the Court of Appeal's conclusion: [2005] UKHL 33.
2. Court of Appeal: Allowed the mother's appeal and set aside the conclusion that the former partner was the child's legal father: [2003] EWCA Civ 182, reported at [2003] Fam 129.
3. High Court: Hedley J decided the preliminary jurisdictional issue in the former partner's favour and made a declaration of paternity: [2002] 2 FLR 843.
4. County Court: His Honour Judge Hedley made an indirect contact order and adjourned the application for parental responsibility. Paternity had initially been conceded.