Unmarried couples who hope to have children together via fertility treatment must comply with a number of requirements in order for both partners to be legally recognised as parents, but if a mistake is made in the documentation, the courts can often assist. This point was demonstrated in a recent case where a declaration of parentage under Section 55A of the Family Law Act 1986 was granted to a woman in a same-sex relationship whose partner had given birth after undergoing IVF treatment.
The woman had herself given birth to a girl in 2021 following IVF treatment. She and her partner had completed the necessary forms consenting to her partner being the girl’s legal parent. Her partner subsequently gave birth to a boy following IVF treatment at the same clinic. During her partner’s pregnancy, the clinic had conducted a routine audit and discovered that it had no consent forms for the second cycle of IVF treatment in its records. The woman therefore applied to the High Court for a declaration of parentage in respect of the boy. The clinic had apologised to the couple and agreed to pay the costs of the application.
The Court noted that it was established by case law that, in the event that consent forms were missing, internal forms used by clinics could stand in their place to meet the requirements of Sections 43 and 44 of the Human Fertilisation and Embryology Act 2008. Previous cases had also established that consent forms completed for an earlier cycle of IVF treatment could remain valid for subsequent cycles, and that there were circumstances where consent forms could be corrected, including where they could be read as if the birth mother and her partner had completed the forms the other way round.
The Court was satisfied that it had always been the couple’s intention that they would both be the legal parents of any child born as a result of fertility treatment. They had believed they had done everything necessary to meet the statutory and regulatory requirements, including those related to legal parenthood, for both treatment cycles. Both of them had been registered as the boy’s legal parents after his birth, and the woman’s partner fully supported her application.
The Court ruled that the internal clinic forms they had completed should be accepted as satisfying the requirements of the 2008 Act, and there was no reason not to regard the consent forms they had signed before the first cycle of IVF treatment as being valid for the second cycle.
Granting the declaration sought, the Court expressed regret that the couple had had to experience any anxiety about the boy’s legal parentage, and wished the couple and their children all the very best for the future.
Search site
Contact our office
Get in touch
