- Published on
KembaraXtra-Case Law- R (A Child) (Contact: Human Fertilisation and Embryology Act 1990) (No 2) (2003)
Key Issue:
Determination of legal fatherhood in IVF using donor sperm when the couple separates between embryo creation and implantation. Specifically, the interpretation of "being treated" together under Section 28(3) of the Human Fertilisation and Embryology Act (HFEA) 1990.
Facts:
This section applies when the male partner is unmarried to the woman and seeks to be recognized as the legal father in cases of donor sperm IVF. It stipulates that:
Key Issue:
Determination of legal fatherhood in IVF using donor sperm when the couple separates between embryo creation and implantation. Specifically, the interpretation of "being treated" together under Section 28(3) of the Human Fertilisation and Embryology Act (HFEA) 1990.
Facts:
- Initial Treatment: F and M, an unmarried couple, underwent IVF treatment. M's eggs were fertilized with donor sperm.
- Frozen Embryos: The first embryo implantation failed; remaining embryos were frozen.
- Relationship Breakdown: F and M separated. M entered a new relationship.
- Subsequent Implantation: M, without informing the clinic of her changed circumstances, had a successful embryo implantation using the frozen embryos.
- Paternity Claim: F sought a declaration under s 28(3) HFEA 1990 to be recognized as the legal father, arguing the second implantation was part of the original treatment course.
- First Instance Decision: The judge initially granted F's order.
- Appeal Allowed: The Court of Appeal overturned the initial decision, ruling against F.
- Critical Time: The crucial point for determining legal fatherhood is the time of implantation, not embryo creation.
- "Being Treated" Requirement: At the time of the successful implantation, F was not being treated with M. The requirement of being treated together at the time of implantation was not met.
- Embryo Storage: Emphasized the potential for long-term embryo storage (up to 10 years). Therefore, the relationship status at implantation is paramount.
This section applies when the male partner is unmarried to the woman and seeks to be recognized as the legal father in cases of donor sperm IVF. It stipulates that:
- Subsection (2) doesn't apply: This refers to situations where a man is automatically considered the father.
- Treatment Provided: The embryo (or sperm/eggs in artificial insemination) was placed in the woman as part of treatment services provided for her and a man together by a licensed clinic (s.28(3)(a)).
- Donor Sperm Used: The embryo was created using donor sperm (s.28(3)(b)).
- Legal Fatherhood: If the above conditions are met, "that man" (the partner being treated with the woman) shall be treated as the father of the child. Crucially, he must be undergoing treatment together with the woman.
- Time of Implantation Matters: Legal fatherhood under s 28(3) HFEA 1990 is determined by the circumstances at the time of embryo implantation, not at the time of embryo creation or the start of the initial treatment.
- "Being Treated Together": The male partner must be "treated...together" with the woman at the time of implantation to be recognized as the legal father when donor sperm is used and they are unmarried.
- Implications of Embryo Storage: The possibility of long-term embryo storage reinforces the importance of the relationship status at the time of implantation as the defining factor for legal paternity.
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