Cases Y, Z, AA, AB & AC, Re Human Fertilisation and Embryology Act 2008

Where fertility treatment was undertaken jointly, with informed consent and a shared intention that both partners would be legal parents, defective or incomplete consent paperwork did not necessarily prevent parenthood. The documents had to be read as a whole and obvious clerical errors could be corrected by rectification. The omission of a tick in a consent box was not, without more, fatal where the statutory requirements were otherwise satisfied. A signed Form IC could independently support a declaration of legal parenthood where it showed that the parties intended the partner to become a parent.

Five applications concerned children born following fertility treatment at regulated clinics. In each case the applicant sought a declaration under section 55A of the Family Law Act 1986 that he or she was the child’s legal parent under the Human Fertilisation and Embryology Act 2008. The applicants and respondent mothers had acted jointly, intended shared parenthood and believed that all necessary forms had been completed. The difficulties involved missing or defective Forms WP and PP, transposed names, an incorrectly signed declaration and an unticked consent box. The central issue was whether those defects prevented the statutory conditions for legal parenthood from being met.

1. Declarations granted. In each of the five cases the applicant was entitled to the declaration sought. In Cases AA and AC, the transposed names in Form PP were sufficiently obvious to permit rectification.
2. The relevant consent documents had to be read as a whole. In Case Y, a Form IC stating that the applicant would become a legal parent, although referring to completion of the appropriate HFEA forms, was sufficient in the circumstances. The applicant was therefore entitled to a declaration: In re A, para 63(iii).
3. In Case AA, the transposition of the parties’ names in Form PP was an obvious error capable of rectification. The incorrect signature on the declaration in section 5 was irrelevant. The applicant’s signature at the foot of the second page, including the consent box in section 3, satisfied the statutory requirement.
4. The same rectification approach applied in Case AC. The applicant was also entitled to relief on the independent ground that both parties had signed a materially sufficient Form IC.
5. In Cases AB and Z, the omission of a tick in the section 3 consent box was not fatal to the validity of the relevant Form WP or Form PP. The forms and surrounding evidence demonstrated the parties’ informed consent and shared intention. Each applicant was also entitled to rely independently on materially sufficient Forms IC.
6. The clinic agreed to pay the applicants’ reasonable costs in each case.