“Parliament has devised a legislative scheme and a statutory authority for regulating assisted reproduction in a way which tries to strike a fair balance between the various interests and concerns. Centres, the HFEA and the courts have to respect that scheme, however great their sympathy for the plight of particular individuals caught up in it.”
“This will mean that X’s birth is registered incorrectly and a declaration of parentage is sought so that the birth certificate may be corrected.”
“15. Section 42 and all of the other sections from 35 to 47 only apply where the relevant gateway condition in s.34 is satisfied, namely that there was artificial insemination of W or the “placing in her of the embryo or the sperm and eggs”
“49. At the outset, it is important to understand how this case differs from the previously decided authorities concerned with the interpretation of s.42 of the HFEA 2008. As I indicated earlier in this judgment, the most recent exposition of the interpretation of s.42 is contained in the judgment of Peter Jackson LJ in Re S (Children)[2023] EWCA Civ 897 in paragraphs 35-45. Having reviewed the legislation and the most recent authorities as to the interpretation of s.42 of the HFEA, Peter Jackson LJ concluded relevantly as follows: “44 … Where no issue is brought before a court, the spouse or civil partner of the gestational mother will be the parent of a child born after assisted reproduction in consequence of the statutory presumption of parenthood. Where an issue is raised, the court must give effect to the statutory wording by asking itself the question: “Has it been shown on the balance of probabilities that the spouse or civil partner did not consent to the assisted reproduction that was undertaken?” 45. This question is the only one that must be answered in order to determine whether an individual is to be treated as the child’s legal parent…”
“Has it been shown on the balance of probabilities that the spouse or civil partner did not consent to the assisted reproduction that was undertaken?”
“51. … Of course, it would be unrealistic not to recognise that informal and consensual arrangements might also involve sexual intercourse between a sperm donor and the gestational mother but this would not be assisted reproduction. In those circumstances, where two women are married or in a civil partnership and a child was conceived and born as a result of sexual intercourse, the legal parenthood of the non-gestational parent conferred by s.42 of the HFEA would remain intact if there was no challenge by either the sperm donor and/or the gestational mother. It is, however, a status more apparent than real and built on shaky foundations. Unsurprisingly, it is capable of being displaced if the sperm donor and the gestational mother come forward at a later date to attest to natural intercourse or a lack of consent at the time the child was conceived. This is why informal and consensual arrangements resulting in the birth of a child are often not straightforward in their legal effect and, when relationships between the adults break down, can render a non-gestational parent vulnerable to status challenges just like the one mounted in this case.”
“63. There is no issue in this case that X was conceived from P’s egg and F’s sperm and that P carried and gave birth to her. The starting point at common law is that P is X’s mother and F is her father. This remains the position unless it is displaced by the statutory framework set out in the HFEA 2008. As Peter Jackson J (as he then was) made clear in paragraph 27 of M v F and H (Legal Paternity) (see above), the HFEA only governs situations that fall within its footprint and, where this is not the case, the common law continues to apply. 64. There was much debate in oral submissions about the burden of proof though I found much of what was said did not illuminate that particular issue. S. 42 of the HFEA 2008 creates a rebuttable presumption that consent exists in cases of marriage and civil partnership and, on any analysis, that assisted reproduction is the method of conception. The presumption can be rebutted by evidence which shows that consent has not been given and/or, on my analysis, that assisted reproduction may not have occurred. In this case, the burden of proof lay on P to produce that evidence. This is straightforward, entirely conventional, and in accordance with the Court of Appeal’s decision in In re S (Children) (see above). In this case, I have found, on the balance of probabilities, that Q did not consent to anything other than assisted reproduction but the method of X’s conception was unclear because P and F had natural intercourse during the relevant conception window. In those circumstances, the presumption of Q’s legal parenthood is rebutted and the common law position applies. 65. Analysed in this way, the discriminatory effect feared by Miss Weston KC – namely that it would be too easy to displace parenthood pursuant to s.42 of the HFEA by the making of allegations however poorly founded – is more apparent than real. The evidential burden on P and, to a lesser extent, on F in this case does not equate, as Miss MacLynn KC suggested, to an impermissible presumption of legitimacy or parentage for same-sex couples such as P and Q. It is properly the requirement to establish a case on the balance of probabilities that the criteria in s.42 did not apply to the circumstances of X’s birth where, prior to late 2022, the parties acted in the belief that they did.”