A & Ors (Human Fertilisation And Embryology Act 2008)

Legal parenthood following licensed assisted reproduction depends on signed written notices of consent given before treatment, but no particular statutory form is indispensable. A missing consent form may be proved by oral and documentary evidence. Its subsequent loss through defective record-keeping does not invalidate parenthood.

The court may rectify a consent form where the equitable requirements are met. It may also correct an obvious mistake through construction where the intended meaning is plain. A clinic’s composite consent form can satisfy the statutory requirements if, construed as a whole, it records both partners’ necessary consents. Failure to use the regulator’s prescribed forms does not itself invalidate an otherwise compliant consent.

Seven couples sought declarations of parentage under section 55A of the Family Law Act 1986 following audits which revealed missing, defective or late consent forms at licensed fertility clinics. Five cases concerned a male partner and two concerned a female partner. The treatment had been undertaken jointly, with the settled intention that both partners would be legal parents.

The court had to determine whether missing forms could be proved by other evidence; whether mistakes in forms could be corrected by construction or rectification; and whether clinics’ internal consent forms could satisfy sections 37 and 44 of the Human Fertilisation and Embryology Act 2008. It also considered whether failure to use forms specified by the regulator meant that treatment was not provided under a licence.

1. Declarations granted. The applicants in Cases A, B, C, D, E, F and H were entitled to declarations of parentage. Case G had been adjourned and was not determined.
2. Sections 37 and 44 of the Human Fertilisation and Embryology Act 2008 require written notices, signed before treatment, recording both the birth mother’s consent and her partner’s consent to legal parenthood. A statutory declaration of parentage cannot be granted merely by agreement or default. The court must examine the evidence and be satisfied that the statutory conditions are established.
3. A missing Form WP or Form PP may be proved by oral and other evidence. The question is whether the evidence establishes that the form was properly completed and signed before treatment. Loss of the form through a clinic’s breach of its record-keeping obligations does not retrospectively remove parenthood. The reasoning in X v Y [2015] EWFC 13 was followed.
4. A Form WP, Form PP or qualifying internal clinic form may be rectified where the established requirements of the equitable remedy are satisfied. Independently of rectification, the court may correct an obvious error through construction when the mistake and its intended correction are plain on the face of the document.
5. The Barts and Manchester composite internal forms were, when read as a whole, capable of satisfying both partners’ statutory notice requirements. A partner’s acknowledgement that legal parenthood would result amounted in substance to consent. The birth mother’s consent to her partner’s parenthood arose by necessary implication from their signatures on the single composite document.
6. Failure to use the regulator’s specified Forms WP and PP did not invalidate an otherwise compliant consent. Sections 37 and 44 prescribe the substance of the required notices, not a particular form. Treatment of a kind within the scope of a subsisting licence remains treatment provided “under” that licence despite a non-criminal failure to comply with a direction. Regulatory non-compliance may attract regulatory sanctions, but the legislation does not make loss of parenthood the sanction.
7. The parties’ legal status crystallised when the relevant embryo, sperm and eggs were placed, or insemination occurred, and the treatment resulted in a child. Subsequent separation was irrelevant. The declarations were not manifestly contrary to public policy and required no reading down of the legislation.

not stated in the judgment.