AB v CD

Legal parenthood for a second woman under the Human Fertilisation and Embryology Act 2008 depends on strict statutory and licensing compliance. Written, signed consents must be given to the clinic’s person responsible before gamete or embryo transfer. The clinic must also provide both women with sufficient information and a suitable opportunity for proper counselling, so that consent is informed. Late forms, inadequate information or counselling, and deficient records may mean treatment was not provided under the licence and cannot confer parenthood. The parties’ intentions are relevant evidence but cannot override the statute. Public policy favours certainty and respect for the regulatory scheme.

AB applied for contact with twin boys born to her former same-sex partner, CD, following donor insemination at The Z Fertility Clinic. AB was recorded as a parent on the birth certificates. CD sought a declaration under section 55A of the Family Law Act 1986 that AB was not legally their parent.

The court examined whether the WP and PP consent forms had been properly completed and submitted, whether the clinic had complied with its statutory licence conditions concerning information and counselling, and whether the parties’ intentions or public policy could preserve parenthood despite non-compliance. The contact application remained to be dealt with separately.

The court granted the declaration sought by CD and held that AB was not the legal parent of E and F.

1. Statutory conditions. The agreed female parenthood conditions under sections 43 and 44 of the Human Fertilisation and Embryology Act 2008 were cumulative. Written and signed notices had to be given to the person responsible at the clinic before gamete transfer. On the facts, the WP and PP forms were completed and handed to the clinic only after the second insemination procedure on 5 May 2009. That was too late and could not confer parenthood.
2. Informed consent. The clinic’s duties to provide sufficient information and a suitable opportunity for proper counselling applied equally to the intended second parent. Posters and leaflets were inadequate. The evidence did not establish that the significance of legal parenthood had been explained to AB or that either woman had given informed consent.
3. Licence compliance. The licensing conditions under the Human Fertilisation and Embryology Act 1990 required proper information, counselling and record-keeping. The clinic had failed in each respect. Consequently, the treatment was not provided under the terms of the licence for section 43 purposes. Even if the forms had been submitted in time, they would have been ineffective.
4. Intentions and public policy. The parties’ intentions were relevant to questions importing a subjective element, but could not override the strict statutory scheme. Following Re R (IVF: Paternity of Child) [2005] UKHL 33 and Centre for Reproductive Medicine v U [2002] EWCA Civ 565, certainty and respect for Parliament’s regulation of assisted reproduction prevailed over the hardship caused by non-compliance.

The prescribed officer was directed, subject to further representations, to notify the Registrar General within 21 days. AB’s contact application was to be listed urgently. The loss of legal status did not prevent a continuing psychological or social parental relationship.

not stated in the judgment.