G, Re (Human Fertilisation And Embryology Act 2008)

Where fertility-treatment consent forms are completed in error, the court may rectify them retrospectively where the parties intended the legally required parenthood arrangements and the error is established. Wholesale transposition of forms may be appropriate where it best reflects the underlying mistake. The court left unresolved the precise boundary between construction and rectification.

Under Human Fertilisation and Embryology Act 2008, the presumption that a civil partner consents to parenthood is rebuttable. Awareness of treatment or acquiescence is insufficient. Consent requires a deliberate exercise of choice, and whether consent was given is ultimately a question of fact.

X, the biological mother of twins, applied for a declaration under section 55A of the Family Law Act 1986 that she was their legal parent under section 43 of the Human Fertilisation and Embryology Act 2008. Y, the gestational mother, supported the application.

Because of clinic errors, Y signed Form PP and X signed Form WP, rather than the forms appropriate to their respective roles. A further issue arose because Y was in a civil partnership with CP. CP stated that she had not consented to being treated as a legal parent. The issues were whether the forms could be corrected and whether section 42 prevented the declaration sought.

1. The declaration that X was the parent of the twins was made. The parties had jointly undertaken treatment intending that X should be a legal parent. The mistaken completion of Forms WP and PP resulted from clinic error. Applying the principles in In re A, X was entitled to relief.

2. Following Marley v Rawlings, rectification was plainly available in principle. A wholesale correction was not excluded merely because it involved transposing the printed texts of the two forms. That approach best reflected the underlying mistake. Rectification operates retrospectively, and no discretionary ground for refusing relief arose.

3. The court declined to decide whether the forms could instead be saved by construction. The boundary between construction and rectification was difficult, and the issue was unnecessary to the result. The question was left for a case in which it could not be avoided.

4. Section 42 creates a rebuttable presumption that a civil partner consents to parenthood. The presumption is displaced by evidence showing lack of consent and cannot then be used as a makeweight. General awareness of treatment or acquiescence is insufficient; consent requires a deliberate exercise of choice. Whether the person did not consent is a question of fact.

5. CP’s evidence was clear and unequivocal. She had not consented to being treated as a legal parent, and there was no contrary evidence. Section 42 therefore did not prevent X being treated as a parent under section 43. Whether the clinic knew of the civil partnership was irrelevant.

6. The court endorsed criticism of clinics that fail to act openly, transparently and compassionately when administrative incompetence threatens intended parenthood. Those observations were supplementary to the legal determination.