Paternity under the Human Fertilisation and Embryology Act 1990

In re D (a child appearing by her guardian ad litem) HL SJ 27 May

An unmarried couple had begun a course of IVF treatment using donor sperm. The male partner signed an acknowledgement that they were being treated together and that he intended to become the legal father of any resulting child. After the couple had separated the female partner became pregnant following a second course of treatment without the male partner’s knowledge. For the purpose of conferring paternity under s28(3) of the Human Fertilisation and Embryology Act 1990 on an unmarried male partner whose sperm had not been used, the critical time for assessing whether the insemination that led to the birth of a child was ‘in the course of treatment services provided for her and a man together’ was when the embryo or the sperm and eggs were placed in the woman. The general rule that the original course of treatment continued until either party or the clinic withdrew from the understanding that the man and woman were being treated ‘together’ could produce some undesirable and unjust consequences. Although legal certainty was important, it was more important that the very significant legal relationship of parenthood should not be based on a fiction. The clinic’s perception of whether treatment services were being provided to two people ‘together’ was only one element to be taken into account. If the rest of the evidence showed that at the material time there was no longer any ‘joint enterprise’ between the woman and her ex-partner this was the decisive element. Accordingly in the present case the male partner was not to be treated as the father of the child.