In re D (a child)

The House of Lords considered the meaning and application of section 28(3) of the Human Fertilisation and Embryology Act 1990, which treats a man as the legal father where embryos or sperm and eggs were placed in a woman "in the course of treatment services provided for her and a man together". The court held that the statutory test raises a question of fact to be decided by the judge on all the evidence at the relevant time (the time of embryo placement or insemination). Evidence includes the perspectives and records of the clinic and the perceptions and conduct of the parties; neither is given statutory priority. The child's welfare under section 13(5) is paramount and clinics should keep clear, contemporaneous records and obtain acknowledgments to reduce future uncertainty.

This was an appeal against the Court of Appeal's decision concerning the legal paternity of a child born after in vitro fertilisation using donor sperm. The mother (D) became pregnant after a prolonged course of treatment at a licensed clinic. Her former partner (B) had earlier attended the clinic with her, signed acknowledgement/consent forms and participated in counselling, but the couple separated before the embryo transfer that resulted in the birth. B sought orders for contact and parental responsibility and a declaration of paternity was central to the dispute.

Procedurally the case began in the County Court where Hedley J found in favour of B and made an initial declaration of paternity (reported as B and D v R [2002] 2 FLR 843). The Court of Appeal allowed the mother’s appeal and held that the statutory test in section 28(3) should be judged at the time of embryo placement and that where circumstances changed a fresh assessment might be required (Re R (a child) (IVF: paternity of child) [2003] Fam 129). The matter reached the House of Lords on further appeal.

The issues were (i) how to construe the phrase "in the course of treatment services provided for her and a man together" in section 28(3), (ii) the point in time at which the test is to be applied, and (iii) what evidence is determinative where the clinic records and the parties’ perspectives conflict. The House of Lords held that the critical moment is the time of embryo placement or insemination, but that whether services were provided "for her and a man together" is a question of fact to be determined by considering all relevant evidence. Clinic records are important but do not displace other evidence, particularly where deception or changed circumstances are alleged. The court emphasised the primacy of the child’s welfare under section 13(5) and recommended more robust clinic procedures and record-keeping to avoid uncertainty about legal parentage.

Appeal dismissed. The House of Lords concluded that section 28(3) raises a question of fact to be judged at the time of embryo placement or insemination and that the answer must be reached on all the evidence (including clinic records and parties' perceptions), with the child's welfare paramount. The Court therefore upheld the Court of Appeal's approach and dismissed the appellant's challenge to it.

County Court (Hedley J) initial hearing and reserved judgment; decision on preliminary issue declaring paternity reported as B and D v R [2002] 2 FLR 843. Court of Appeal allowed the mother's appeal in Re R (a child) (IVF: paternity of child) [2003] Fam 129 (also cited as [2003] EWCA Civ 182). The appeal to the House of Lords was heard and dismissed [2005] UKHL 33.