Y-Z (Declaration of Parentage), Re

For the purposes of establishing legal parenthood under the Human Fertilisation and Embryology Act 2008, the court may consider the evidence as a whole. Alternative documents may satisfy the statutory notice requirements if they are written, signed before conception and demonstrate informed consent. Required forms are not necessarily invalid because they were completed at an earlier stage of treatment or because the WP and PP forms were signed the wrong way round. In an appropriate case, the court may construe or rectify such errors. The decisive question is whether the documents and surrounding evidence establish the applicants’ mutual intention that the non-birth parent should be the child’s legal parent.

Y and Z, a same-sex couple, applied for a declaration of parentage under section 55A of the Family Law Act 1986. Their child was conceived using donor sperm at a licensed fertility clinic and carried by Z. The clinic later discovered that the WP and PP forms had not been updated when the treatment plan changed from an embryo transfer to Y to an embryo transfer to Z. The forms completed earlier nominated Z as the legal parent of a child carried by Y. The issue was whether those forms, read with the other treatment documentation and the parties’ evidence, satisfied the requirements of sections 43 and 44 of the Human Fertilisation and Embryology Act 2008.

1. Declaration granted. The court made a declaration that Y was V’s legal parent.
2. The court may examine the evidence as a whole to determine what the applicants consented to when consenting to fertility treatment. Documents other than the prescribed HFEA forms may satisfy sections 43 and 44 if they are in writing, signed before conception and demonstrate informed consent. This includes documents which do not expressly use the language of legal parenthood, provided their effect is clear in context: A, B and Bourn Hall Clinic [2021] EWHC 1750 (Fam).
3. Earlier WP and PP forms may remain effective for later treatment cycles. Sections 43 and 44 do not prescribe a particular form or earliest date. They require written and signed consent before the relevant treatment. The forms signed by the applicants in May 2021 could therefore apply to the embryo transfer in August 2022.
4. The court may correct mistakes in WP and PP forms by rectification or, where the error is obvious on the face of the documents, by construction: Re A and others (2015) EWHC 2602 (Fam). The wrong-way-round forms in Re G (2016) EWHC 729 (Fam) were treated as valid, and the same approach was appropriate here.
5. The forms, read in light of the applicants’ consistent intention to become joint legal parents and the wider treatment records, validly conferred legal parenthood on Y.