I, Re (Human Fertilisation And Embryology Act 2008)

A consent document need not bear the prescribed form’s title if, as a matter of content and construction, it satisfies the statutory requirements for legal parenthood. A consent signed before the Human Fertilisation and Embryology Act 2008 came into force may remain effective when treatment begins after commencement, provided it satisfies the requirements of section 37. An obvious clerical mistake may be corrected by construction where the intended meaning is plain; rectification is unnecessary. These principles enabled a declaration of legal parentage despite the clinic’s use of an obsolete consent form and its recording of the wrong sperm source.

X sought a declaration under section 55 A of the Family Law Act 1986 that he was the legal father of the child born to Y following IVF treatment. X and Y had jointly undertaken treatment intending that X would be the child’s legal parent. They had signed Form IC before the Human Fertilisation and Embryology Act 2008 came into force, but treatment began on the date of commencement. The form recorded X’s sperm, although anonymous donor sperm was used. The clinic had also advised the couple to pursue adoption. The issues were whether Form IC satisfied section 37 of the 2008 Act, whether its pre-commencement execution affected its validity, and whether the sperm-source error could be corrected by construction.

1. Declaration granted. X was declared to be the father of the child. The adoption application was consequently unnecessary, and X was given leave to withdraw it.
2. The Form IC was, as a matter of content and construction, apt to operate both as Form PP and Form WP. It therefore complied with section 37(1)(a) and section 37(1)(b) of the Human Fertilisation and Embryology Act 2008, even though the prescribed forms had not been used.
3. The fact that Form IC had been signed before the 2008 Act came into force did not invalidate it. The decisive question was whether the document relied on was substantively capable of satisfying section 37. The parties had not withdrawn their consents, and the same document continued to operate as consent to the treatment. Failure to use Form WP or Form PP did not invalidate an otherwise compliant consent.
4. The reference in Form IC to X’s sperm was an obvious clerical error. It was clear from the circumstances that anonymous donor sperm was intended. The error could therefore be corrected as a matter of construction, without invoking the equitable doctrine of rectification.
5. The court criticised the clinic’s handling of the matter, particularly its failure to provide an appropriate apology and its inaccurate and hurtful advice concerning the child’s birth certificate. Those observations reinforced the need for empathy, humanity and proper support in cases involving consent anomalies.

The judgment was a first-instance decision. Earlier adoption proceedings had been stayed pending determination of the parentage application; no appeal from the present decision is stated.