AK, Re Human Fertilisation and Embryology Act 2008

Where a same-sex partner signs a fertility-treatment consent form alongside the birth mother, the court must assess the document in its factual and statutory context. A signature wrongly placed in a section intended for a representative may nevertheless operate as the partner’s written consent to being treated as the child’s legal parent. The relevant question is what the parties intended the signature to record, viewed from both partners’ perspectives and in light of the form’s wording. Where the evidence shows that both parties intended parenthood and believed they had completed the necessary formalities, the court may grant a declaration of legal parentage under the Human Fertilisation and Embryology Act 2008.

The applicant, X, sought a declaration under section 55A of the Family Law Act 1986 that she was the legal parent of C under sections 43 and 44 of the Human Fertilisation and Embryology Act 2008. X and Y, the child’s birth mother, were former partners who had jointly undertaken fertility treatment intending that X should be a legal parent.

Y had correctly completed Form WP, including the consent for her partner to be the legal parent. X had signed the form, but her signature appeared in the section for a representative signing on behalf of the person consenting. No Form PP or Form IC could be found. The issue was whether X’s signature was effective as her own written consent under section 44(1)(a), as well as Y’s consent under section 44(1)(b).

1. Declaration granted. X was declared to be C’s legal parent.
2. The court adopted the statutory analysis in In re A [2015] EWHC 2602 (Fam), [20]. The ultimate question was whether X had given written and signed notice consenting to being treated as the parent of a child resulting from treatment provided to Y.
3. There had plainly been a mistake in the completion of Form WP. X was not signing as Y’s representative, since Y had signed the form herself. The form nevertheless showed that X signed alongside Y as her partner, and that both parties intended X to be a legal parent.
4. Construing the form in its context, X’s signature could only sensibly be understood as recording that intention. From Y’s perspective, there was no sensible purpose in X signing the form if X was not to be a parent. The same applied from X’s perspective. The evidence established that the treatment had been undertaken jointly, that both parties intended parenthood, and that both believed they had completed the required formalities.
5. The absence of a correctly located signature did not defeat the statutory consent in these circumstances. The declaration sought by X was therefore made.
6. The clinic agreed to pay X’s reasonable costs. The court summarily assessed them in the sums claimed, making no reduction to the solicitors’ hourly rate, time spent on correspondence, or counsel’s fees. The novelty and importance of the issue justified the work undertaken.

Not stated in the judgment.