- This
case has been before the High Court of the Family Division on several occasions.
I gave a short judgment on the 4th November 2002 (see [2003] 1FLR 412)
setting out the facts which were then known. The main issue before the court at
this hearing is to establish the legal parentage of YA and ZA (the twins). Everyone
concerned with the problems which have arisen in this case agrees that the twins
should remain with the family into which they were born, with Mr and Mrs A. It
is clear from the facts now established that Mrs A gave birth to the twins and
is their biological mother. It is equally clear from the DNA tests that Mr B is
their biological father. Both families sought treatment within the provisions
of the Human Fertilisation and Embryology Act 1990 (the 1990 Act). In order to
establish the legal parentage of the twins, it is necessary to consider whether
certain provisions of the 1990 Act, principally sections 28 and 29 and Schedule
3, apply to the facts of this case. If section 28(2) or (3) applies, Mr A will
be treated for all purposes as the father. If this case does not come within the
provisions of section 28(2) or (3), Mr B, as the biological father, will be the
legal father. Because he was not married to the mother, however, he would not
have parental responsibility for the twins unless it was specifically conferred
upon him. In the event that it becomes necessary to make any decisions to ensure
the long-term welfare of the twins, the legal status of their parentage must be
established. At birth, they were registered as the children of Mr and Mrs A. Mr
B has made an application under section 55A of the Family Law Act 1986, as amended,
for a declaration of parentage. By agreement of all parties, I have adjourned
that application generally.
The
parties
- I
have been assisted greatly by the excellent written and oral submissions of all
the counsel in this difficult case. Miss Parker QC, on behalf of Mr and Mrs B,
submitted on the legislation that sections 28(2) and (3) did not apply and that
Mr B was the legal father. Mr Eadie, on behalf of the Secretary of State for the
Department of Health, (D of H), supported her submission. It was also supported
by Miss Rose for the Human Fertility and Embryology Authority (the Authority),
and by Mr Jackson QC for the Official Solicitor representing the twins. Miss Hamilton
QC, for Mr and Mrs A, submitted that section 28 applied and that, in accordance
with the irrebuttable presumption provided by section 28(4) and section 29(1),
Mr A was the legal father. She was supported by Mr Francis QC, for the Leeds Teaching
Hospitals NHS Trust, (the NHS Trust). Mr Garnham QC, instructed by the Attorney
General as Advocate to the Court, very helpfully considered the submissions of
all the other parties and submitted to the court that section 28 did not apply
to the facts of this case.
- Before
considering the competing arguments on the 1990 Act, the relevance of the European
Convention and the Human Rights Act 1998 to the 1990 Act and whether an issue
of incompatibility arises, I shall set out a summary of the background facts surrounding
the conception and birth of the twins which I largely take, with gratitude, from
the skeleton argument provided by Miss Parker and her junior, Mr Foster.
The
Background Facts
- Mr
and Mrs A and Mr and Mrs B attended at the Clinic run by the NHS Trust to undergo
intracytoplasmic sperm injection techniques ("ICSI") using the eggs
of the wife in each case and the sperm of the husband in each case.
- Mr
Leigh, giving evidence for the NHS Trust, in his fourth witness statement, dated
18th November 2002, stated that:
- Mrs
A consented to her eggs being used and mixed with her husband’s sperm. She did
not consent to her eggs being mixed with named or anonymous donated sperm. She
consented to the placing of not more than two resulting embryos in her uterus.
She consented to her eggs and any resulting embryo being used in her own treatment
or in any research project. She refused to consent to her eggs or embryos being
used in treating others.
- Mr
A consented to his wife’s treatment, and confirmed his understanding that he would
be the father of any resulting child. He consented to his sperm being used to
treat his wife. He refused to consent to its being used to treat others or for
research. He consented to his sperm being used to fertilise his wife’s eggs in
vitro and to the embryos developed from these eggs being used in the treatment
of himself together with a named partner, his wife. He refused to consent to the
embryos being used for the purpose of treatment of others but did consent to them
being used in any project of research.
- Mrs
B consented to her eggs being mixed with her husband’s sperm and two resulting
embryos being placed in her uterus. She did not consent to her eggs being mixed
with donor sperm, and did not consent to any spare embryos being used for research
purposes.
- Mr
B consented to his wife’s treatment and records that he understood that he would
be the father of any resulting child. He consented to his sperm being used to
treat his wife. He expressly refused to consent to his sperm being used in treating
others or in any research project.
- By
a ‘mistake’ (which I shall call it despite its inadequacy as a description of
what occurred), Mr B’s sperm were injected into the eggs of Mrs A. She became
pregnant with the twins of whom she is the genetic mother and Mr B is the genetic
father. None of the four parties involved consented. Mr and Mrs A are both white
and, after the birth of the twins, it became apparent that they were children
of mixed race. Behind the legal arguments which occupied the court for three days
lies a tragic human story of two families trying to come to terms with the consequences
of the mistake. It is, however, necessary to engage in the legal arguments because
the mistake raises the issue of the status of the children. I respectfully agree
with Wilson J who said in U v W (Attorney General Intervening) [1997] 2
FLR 282 at page 303
"….there
is a particular need for certainty in provisions affecting status…"
The
legislation
- At
common law, Mr B has the status of an unmarried father. He would not have parental
responsibility by virtue of section 2(2)(b) of the Children Act 1989. The main
argument in this case concerns the effect of the 1990 Act on the common law and
the Children Act. I turn now to the relevant provisions of the 1990 Act. The preamble
sets out the purpose of the legislation
"An Act to make
provision in connection with human embryos and any subsequent development of such
embryos; to prohibit certain practices in connection with embryos and gametes;
to establish a Human Fertilisation and Embryology Authority; to make provision
about the persons who in certain circumstances are to be treated in law as the
parents of a child; and to amend the Surrogacy Arrangements Act 1985."
- A
clear purpose of this aspect of the 1990 Act is to make provision for certain
persons to be treated as parents. The main question is whether these facts fall
within the scope of the 1990 Act so as to give Mr A the status of father of the
twins.
- Section
1 describes the meaning of "embryo", "gamete" and associated
expressions
(1)
"In this Act, except where otherwise stated –
(a)
embryo means a live human embryo where fertilisation is complete,
and
(b)
references to an embryo include an egg in the process of fertilisation,
and,
for this purpose, fertilisation is not complete until the appearance of a two
cell zygote.
(2)
This Act, so far as it governs bringing about the creation of an embryo, applies
only to bringing about the creation of an embryo outside the human body; and in
this Act –
(a)
references to embryos the creation of which was brought about in vitro
(in their application to those where fertilisation is complete) are to those where
fertilisation began outside the human body whether or not it was completed there,
and
(b)
references to embryos taken from a woman do not include embryos whose creation
was brought about in vitro.
(3)
This Act, so far as it governs the keeping or use of an embryo, applies only
to keeping or using an embryo outside the human body.
(4) References
in this Act to gametes, eggs or sperm, except where otherwise stated, are to live
human gametes, eggs or sperm but references below in this Act to gametes or eggs
do not include eggs in the process of fertilisation."
- Section
2 sets out the meaning of the phrase ‘treatment services’ which is found in section
28(3).
(1) In
this Act –
"treatment
services" means medical, surgical or obstetric services provided to the public
or a section of the public for the purpose of assisting women to carry children.
- Section
13 sets out the conditions of licences for treatment
(1) The
following shall be conditions of every licence under paragraph 1 of Schedule 2
to this Act.
…………
(5) A
woman shall not be provided with treatment services unless account has been taken
of the welfare of any child who may be born as a result of the treatment (including
the need of that child for a father), and of any other child who may be affected
by the birth.
(6) A
woman shall not be provided with any treatment services involving –
(a) the
use of any gametes of any person, if that person’s consent is required under paragraph
5 of Schedule 3 to this Act for the use in question,
(b) the
use of any embryo the creation of which was brought about in vitro, or
(c) the
use of any embryo taken from a woman, if the consent of the woman from whom it
was taken is required under paragraph 7 of that Schedule for the use in question,
unless
the woman being treated and, where she is being treated together with a man, the
man have been given a suitable opportunity to receive proper counselling about
the implications of taking the proposed steps, and have been provided with such
relevant information as is proper.
(7) Suitable
procedures shall be maintained –
(a) for
determining the persons providing gametes or from whom embryos are taken for use
in pursuance of the licence, and
(b) for
the purpose of securing that consideration is given to the use of practices not
requiring the authority of a licence as well as those requiring such authority.
- Section
27 gives the meaning of ‘mother’ for the purpose of the 1990 Act. It is section
28, however, which is crucial to the determination of the main issue. It gives
the meaning of ‘father’ for the purpose of the 1990 Act.
(1) This
section applies in the case of a child who is being or has been carried by a woman
as the result of the placing in her of an embryo or of sperm and eggs or her artificial
insemination.
(2) If
–
(a) at
the time of the placing in her of the embryo or the sperm and eggs or of her insemination,
the woman was a party to a marriage, and
(b) the
creation of the embryo carried by her was not brought about with the sperm of
the other party to the marriage,
then,
subject to subsection (5) below, the other party to the marriage shall be treated
as the father of the child unless it is shown that he did not consent to the placing
in her of the embryo or the sperm and eggs or to her insemination (as the case
may be).
(3) If
no man is treated, by virtue of subsection (2) above, as the father of the child
but –
(a) the
embryo or the sperm and eggs were placed in the woman, or she was artificially
inseminated, in the course of treatment services provided for her and a man together
by a person to whom a licence applies, and
(b) the
creation of the embryo carried by her was not brought about with the sperm of
that man,
then,
subject to subsection (5) below, that man shall be treated as the father of the
child.
(4) Where
a person is treated as the father of the child by virtue of ` subsection (2)
or (3) above, no other person is to be treated as the father of the child.
(5) Subsections
(2) and (3) above do not apply –
(a) in
relation to England and Wales and Northern Ireland, to any child who, by virtue
of the rules of common law, is treated as the legitimate child of the parties
to a marriage,
(b) (applies
to Scotland only), or
(c) to
any child to the extent that the child is treated by virtue of adoption as not
being the child of any person other than the adopter or adopters.
(6) Where
–
(a) the
sperm of a man who had given such consent as is required by paragraph 5 of Schedule
3 to this Act was used for a purpose for which such consent was required, or
(b) the
sperm of a man, or any embryo the creation of which was brought about with his
sperm, was used after his death,
he
is not to be treated as the father of the child.
(7) The
references in subsection (2) above to the parties to a marriage at the time there
referred to –
(a) are
to the parties to a marriage subsisting at that time, unless a judicial separation
was then in force, but
(b) include
the parties to a void marriage if either or both of them reasonably believed at
that time that the marriage was valid; and for the purposes of this subsection
it shall be presumed, unless the contrary is shown, that one of them reasonably
believed at that time that the marriage was valid.
(8) This
section applies whether the woman was in the United Kingdom or elsewhere at the
time of the placing in her of the embryo or the sperm and eggs or her artificial
insemination.
(9) In
subsection (7)(a) above, "judicial separation" includes a legal separation
obtained in a country outside the British Islands and recognised in the United
Kingdom.
- Section
29 provides for the effect of sections 27 and 28
(1) Where by virtue of section 27 or 28 of this Act a person is to be treated
as the mother or father of a child, that person is to be treated in law as the
mother or, as the case may be, father of the child for all purposes.
(2) Where
by virtue of section 27 or 28 of this Act a person is not to be treated as the
mother or father of a child, that person is to be treated in law as not being
the mother or, as the case may be, father of the child for any purpose."
- Schedule
3, headed ‘Consents to Use of Gametes or Embryos,’ provides for the necessary
consents from the couples preparing to undergo this treatment.
"1 A consent
under this Schedule must be given in writing and, in this Schedule, "effective
consent" means a consent under this Schedule which has not been withdrawn.
2 (1)
A consent to the use of any embryo must specify one or more of the following purposes
–
(a) use
in providing treatment services to the person giving consent, or that person and
another specified person together,
(b) use
in providing treatment services to persons not including the person giving consent,
or
(c) use
for the purposes of any project of research,
and
may specify conditions subject to which the embryo may be so used.
(2) A
consent to the storage of any gametes or any embryo must –
(a) specify
the maximum period of storage (if less than the statutory storage period), and
(b) state
what is to be done with the gametes or embryo if the person who gave the consent
dies or is unable because of incapacity to vary the terms of the consent or to
revoke it,
and
may specify conditions subject to which the gametes or embryo may remain in storage.
(3) A
consent under this Schedule must provide for such other matters as the Authority
may specify in directions.
(4) A
consent under this Schedule may apply –
(a) to
the use or storage of a particular embryo, or
(b) in
the case of a person providing gametes, to the use or storage of any embryo whose
creation may be brought about using those gametes,
and
in the paragraph (b) case the terms of the consent may be varied, or the consent
may be withdrawn, in accordance with this Schedule either generally or in relation
to a particular embryo or particular embryos.
3 Procedure
for giving consent
(1) Before a person gives consent under this Schedule –
(a) he
must be given a suitable opportunity to receive proper counselling about the implications
of taking the proposed steps, and
(b) he
must be provided with such relevant information as is proper.
…………
5 Use
of gametes for treatment of others
(1) A
person’s gametes must not be used for the purposes of treatment services unless
there is an effective consent by that person to their being so used and they are
used in accordance with the terms of the consent.
(2) A
person’s gametes must not be received for use for those purposes unless there
is an effective consent by that person to their being so used.
(3) This
paragraph does not apply to the use of a person’s gametes for the purpose of that
person, or that person and another together, receiving treatment services."
- It
was not necessary for Mr A to give ‘effective consent’, since the process was
carried out by husband and wife and there was no intention to have a sperm donation
from a third person. It was necessary for him to consent if section 28(2) applied
and, in my judgment, the distinction between ‘effective consent’ and ‘consent’
is not of significance on the facts of this case.
- I
propose to consider first the meaning of section 28(2) and section 28(3) without
looking at the impact of the Human Rights Act on the domestic legislation, and
then turn to the relevant articles of the European Convention and the European
jurisprudence and their effect, if any, upon the meaning of each subsection.
Hansard
- I
have been invited, by Mr Eadie and Mr Jackson, to look at the way in which section
28 was introduced in the House of Lords and the relevant extracts from Hansard.
I have also been provided with the Notes on Clauses. I have been strongly urged,
principally by Mr Garnham, not to embark on that course, and I agree with his
submission. In my judgment it is not necessary for me to invoke Pepper v Hart
[1993] AC 593 and seek assistance from the debate on the Bill, in particular,
since Mr Garnham reminded me that I have to consider the meaning of the 1990 Act
in the light of the Human Rights legislation and reference to Hansard would be
of no assistance in that exercise. I was asked to look at the notes surrounding
the Bill but I have come to the conclusion that it is not necessary to do so as
an aid to interpretation.
Code
of Practice
- I
have read the relevant Code of Practice, the 4th, issued by the Authority
as guidance. Part 5 of that Code sets out the requirements of consent and the
concept of legal fatherhood within the 1990 Act.
"Consent
of the Husband or Male Partner and Legal Fatherhood
5.6 Centres
should adopt the procedures described in the following paragraphs in the interests
of preventing or resolving a dispute at a later stage about the fatherhood of
a child. (Centres are also referred to paragraph 3.17(1), above.)
5.7 A
woman’s husband will be the legal father of a child born as a result of treatment
using donated sperm, unless they are judicially separated or he can prove that
he did not consent to the treatment. If a married woman is being treated with
donated sperm, centres should explain the position and ask her whether her husband
consents to the treatment. If he does, the centre should take all practicable
steps to obtain his written consent. If the woman does not know, or he does not
consent, centres should, if she agrees, take all practicable steps to ascertain
the position and (if this is the case) obtain written evidence that he does not
consent.
5.8 If
a woman is being treated together with a male partner, using donated sperm, and
she is unmarried or judicially separated or her husband does not
consent to the treatment, her male partner will be the legal father of any resulting
child. Centres should explain this to them both and record at each appointment
whether or not the man was present. Centres should try to obtain the written acknowledgement
of the man both that they are being treated together and that donated sperm is
to be used. Centres should also explain that when a child is born to an unmarried
couple the male partner may not have parental responsibility for that child (Children
Act 1989). Unmarried couples concerned about how parental responsibility affects
their legal rights should seek their own legal advice."
- Although
it is clear from paragraphs 5.7 and 5.8 that those drafting the Code of Practice
treated section 28(2) as applying to married couples agreeing to the use of sperm
from a donor who was not the husband and section 28(3) to couples who were not
married to each other wishing to have children with the use of a sperm donor,
the Code merely confirmed the conclusion to which I had already come.
- The
two most important principles to be found in the 1990 Act are the welfare of any
children born by treatment under the provisions (see for instance section 13(5)),
and the requirements of consent (see Schedule 3(5), section 28(2) and the statutory
consent forms, and Annex C to the Code of Practice). Hale LJ said in Mrs U
v Centre for Reproductive Medicine [2002] EWCA Civ 565 at paragraph 24
"The
whole scheme of the 1990 Act lays great emphasis upon consent. The new scientific
techniques which have developed since the birth of the first IVF baby in 1978
open up the possibility of creating human life in ways and circumstances quite
different from anything experienced before then. These possibilities bring with
them huge practical and ethical difficulties. These have to be balanced against
the strength and depth of the feelings of people who desperately long for the
children which only these techniques can give them, as well as the natural desire
of clinicians and scientists to use their skills to fulfil those wishes. 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."
- Miss
Hamilton pointed out that the 1990 Act and the Code of Practice laid heavy emphasis
upon the welfare of the children resulting from treatment and, even if the adults
consented, the treatment could not be embarked upon unless account has been taken
of the welfare of any resulting child.
Section
28
- Section
28 potentially applies because this is a case of twins who have been carried by
a woman, Mrs A, as the result of the placing in her of an embryo. It is, however,
clear to me that the present situation where the sperm of a man has been placed
in the eggs of a woman by mistake was not in the minds of those drafting the Bill
or in Parliament’s mind when it passed section 28.
- Miss
Hamilton accepted that the present situation was not contemplated by the legislators,
but submitted that the court is not bound to assume that parliamentary
counsel could foresee every possibility that might arise. Otherwise, as Arden
LJ said in Re S (Freeing for Adoption) [2002] EWCA Civ 798, [2002] 2 FLR
681 at paragraph 37, there would never be any problem of statutory interpretation
for the court to resolve. Miss Hamilton suggested that the purpose of this part
of the 1990 Act under the umbrella of welfare was to protect children born as
a result of treatment. It was designed to prevent the man who donated sperm from
attempting to be treated as the father and to ensure that the man who engaged
in the treatment process was prepared to accept responsibility for the child of
another man. As Miss Hamilton so graphically put it, children need fathers.
Section
28(2)
- Looking
superficially at section 28(2), it might appear that Mr A could be the legal father
of the twins, since, at the time of the placing in Mrs A of the embryo, Mrs A
was a party to the marriage with Mr A and the creation of the embryo carried by
her was not brought about with the sperm of Mr A. The application of subsection
(2), however, is subject to two provisos. The first is contained in section 28(5)
and provides for the common law presumption of legitimacy of a child born to a
mother during her marriage. In the present case, that presumption is displaced
by the DNA tests which established that Mr B is the biological father of the twins.
- The
second proviso, contained in subsection (2) itself, is the requirement of the
husband’s consent. Subsection (2) applies unless it is shown that Mr A "did
not consent to … her insemination." It is obvious that section 28 is not
relevant if the sperm given by Mr A was used since he is then the biological father
and the twins are the legitimate children of Mr and Mrs A. The question is whether
Mr A consented to the insemination of Mrs A by a third person (for the purposes
of this argument, ‘a donor’).
- Miss
Hamilton submitted that on strict statutory interpretation Mr and Mrs A came within
subsection (2). It was not necessary in the case of a married couple for the husband
to give ‘effective’ or written consent. There was a rebuttable presumption that
he had consented. Miss Hamilton argued that Mr A gave a broad consent to the placing
of an embryo sufficient to treat him as the father unless it could be shown that
Mr A had not consented. He did not raise the issue nor seek to set aside the presumption.
- The
insurmountable problem, in my view, to that approach, is the question – to what
did he consent? The whole procedure is governed by written consent forms which
are filled in and signed by both intended parents after careful discussion and
counselling in the clinic. Mr A gave his written consent in the standard form
which is at Annex C of the 4th Code of Practice. He consented to the
‘course of treatment outlined above’, as interpreted in section 2(1). The ‘course
of treatment’ to which he consented was that outlined in Mrs A’s consent form.
As I set out above, Mrs A consented to her eggs being used and mixed with her
husband’s sperm. She did not consent to her eggs being mixed with named or anonymous
donated sperm. She consented to the placing of not more than two resulting embryos
in her uterus.
- Mr
A certainly gave his consent to the placing in his wife of ‘an embryo’. The embryo
actually placed in Mrs A was a fundamentally different embryo from one that might
have been created by the use of Mr A’s sperm. Mr A has indicated that he does
not wish to seek to withdraw his consent and wishes to take advantage of the irrebuttable
presumption set out in section 28(2) and become the legal father. It is not, however,
a matter of endorsement by the husband of his consent. The question whether the
husband consented is a matter of fact which may be ascertained independently of
the views of those involved in the process. On the clear evidence provided in
the consent forms Mr A plainly did not consent to the sperm of a named or anonymous
donor being mixed with his wife’s eggs. This was clearly an embryo created without
the consent of Mr and Mrs A.
- Miss
Hamilton and Mr Francis, on behalf of the NHS Trust, argued that the use of Mr
B's sperm for the eggs of Mrs A was by way of a mistake which did not vitiate
the meaning of subsection (2). Mr Eadie argued that such a mistake was fatal.
I was asked to look at a number of cases where mistakes were held not to be fundamental
and a number of other cases where they were. In my judgment, this line of cases
does not assist me, since the mixing of the sperm of Mr B with the eggs of Mrs
A was not within the contemplation of either family and was entirely contrary
to the written consents given by Mr A. This mistake went to the root of the whole
process and has had irreparable consequences. The concern of Mr Francis that,
if the court found that a fundamental mistake had occurred in this case so as
to exclude the application of section 28(2), in cases where there had been trivial
errors the application of section 28(2) would also be excluded, is misconceived.
Mistakes may well occur during the process for other families undergoing the treatment
which may be contrary to the provisions of the 1990 Act but which are not fundamental.
In those cases the consent will probably not be vitiated. This mistake was, I
hope, exceptional and of an entirely different significance and severity from
minor breaches. I am satisfied that, on the proper interpretation of section 28(2)
in the absence of any consideration of the Human Rights legislation and its jurisprudence,
Mr A did not consent to the placing in his wife of the embryo which was actually
placed. Accordingly, section 28(2) does not apply.
Section
28(3)
- Miss
Hamilton argued that the literal wording of subsection (3) covered the present
circumstances. In a situation where no man is treated as the father by virtue
of subsection (2), if subsection (3)(a) applied to married men as well as unmarried
men and the court was satisfied that Mr and Mrs A were treated together by a person
to whom a licence applies, then on a strict statutory interpretation, subsection
(3) would apply. She submitted that Wilson J was in error in U v W (above)
in holding that subsection (3) applied only to a man who was not married to the
woman (see page 291h). Treatment together was a course of conduct and it would
be wrong in the context of treatment not to look at the whole enterprise. She
urged a robust interpretation of ‘treatment together,’ in keeping with the approach
taken in other decisions of the Court of Appeal and the High Court to which I
shall turn below. She recognised that the strict interpretation that she submitted
did not sit comfortably with the Code of Practice which clearly presumed a distinction
between married men within section 28(2) and unmarried men within section 28(3).
A literal interpretation would, however, cover the situation and meet the welfare
requirements of the children who saw Mr A as their father. She suggested that,
if the facts of this case took it outside section 28, then this part of the Act
was incompatible with the Human Rights Act. She suggested that it would be possible
for the court to be human rights compliant if her interpretation of subsection
(3) was adopted.
- I
have found section 28(3) more difficult to interpret than section 28(2). The first
question is whether it was intended to apply to husbands or whether it was designed
solely to deal with efforts to have children by those who were not married
to each other. Subsection (3) requires in the case of the placing of an embryo
in the woman that it was ‘in the course of treatment provided for her and a man
together by a person to whom a licence applies and the creation of the embryo
was not brought about with the sperm of that man’. Subsection (2), although limited
to husbands, appears to be broader than subsection (3). The husband is to be treated
as the father, unless it is shown that he did not consent, that he ‘opted out.’
In subsection (3) the boot is on the other foot. The acceptance of fatherhood
has to be shown. The man has to show commitment and that commitment has to be
demonstrated by his active involvement. In other words, he must ‘opt in.’
Further in subsection (2), in contrast to subsection (3), it does not have to
be shown that the husband played an active part in the course of treatment provided
for his wife and him together by a person to whom a licence applies. I understand
that some treatment under the 1990 Act can be given at home and not by a person
to whom a licence applies. Such treatment could not be carried out under subsection
(3) (see U v W (above), where the treatment was carried out in Rome).
- Mr
Eadie reminded me that by normal statutory interpretation, the court would expect
the Parliamentary draftsman to deal with the larger group before the smaller.
Consequently it would be odd for a married man to be covered both by subsection
(2) and subsection (3). It would not be necessary for a married man to come within
subsection (3) unless it was shown that he had not consented. It is not necessary
to show consent in subsection (3) to the use of a sperm donor. There has to be
treatment together by the man and the woman. Mr Garnham submitted that Parliament
expressly provided in subsection (2) the circumstances in which the husband would
not be held to be the father and it would be extraordinary if subsection (3) could
nonetheless achieve that effect. He suggested that the better view was that subsection
(3) did not cover husbands. I agree with Mr Garnham’s final submission and that
section 28(3) was not intended to include husbands.
- Since
the hearing, I have seen the judgments of the Court of Appeal in re R (a child)
19th February 2003 which dealt with section 28(3). I am reassured
in my conclusions that section 28(3) was not intended to apply to husbands by
paragraphs 20 and 21 of the judgment of Hale LJ
"
We start from the proposition, advanced by Mr Jackson for the child’s guardian,
that section 28(3) is an unusual provision, conferring the relationship of parent
and child on people who are related neither by blood nor by marriage. Conferring
such relationships is a serious matter, involving as it does not only the relationship
between father and child but also between the whole of the father’s family and
the child. The rule should only apply to those cases which clearly fall within
the footprint of the statutory language.
The
wording of section 28 makes it clear that the time at which the legal paternity
is created is the time when the embryo or the sperm and eggs which subsequently
result in the birth of the child are placed in the woman. Section 28(2) expressly
refers to the mother being married at that time. Section 28(3) expressly refers
back to section 28(2) for the purpose of ensuring that the mother’s husband is
excluded from paternity. This suggests that they both refer to the same time.
Section 28(3) also focuses on the act of placing the embryo or sperm and eggs
in the mother, further suggesting that the question whether this is done 'in the
course of treatment services provide for her and a man together' should be answered
at that time and no other."
The
Court of Appeal clearly did not consider that section 28(3) applied to husbands.
Treatment
together
- There
has been, as Miss Hamilton has submitted, a robust interpretation of the concept
of ‘in the course of treatment services provided for her and a man together’.
I was asked to apply certain passages in the judgment of Bracewell J in Re
B (Parentage) [1996] 2 FLR 15 and of Lord Woolf MR in R v Human Fertilisation
and Embryology Authority, ex parte Blood [1997] 2 WLR 806. Hale LJ said at
paragraph 18 in re R (above) that she did not consider that either decision
(above) helped in construing the similar language used in a very different context
and I respectfully adopt that approach to the very particular facts of this case.
- Miss
Hamilton sought to show that Wilson J came to the wrong conclusion about treatment
together’ and that I should decline to follow his decision. Mr Garnham
reminded me that the definition of treatment together in section 2(1) was to assist
the woman to carry a child and pointed to a need to concentrate on the purpose
of undergoing treatment. He submitted that if it was found that there was no consent
to treatment under subsection (2), it was impossible to see how there could be
treatment together for that purpose.
- In
U v W (above), Wilson J found that the couple, who were not married to
each other, had received treatment services together but that the licence provisions
had not been observed. He said at page 294
"I
have no doubt that there is a mental element inherent in the notion of ‘treatment
together’ and that, if the respondent had believed at all material times that
the treatment which was being provided in which his sperm alone was to be used,
Dr A’s treatment of the applicant with donor sperm would not have amounted to
services provided for them together."
- He
was satisfied, however, that the above hypothesis did not fit the facts of that
case. I agree with Mr Garnham’s submissions and with the passage from the judgment
of Wilson J cited above. His hypothesis applies to the facts of the present case.
A fundamental error resulting in the use of the sperm of another in place of the
use of sperm of the man taking part in the treatment must vitiate the whole concept
of ‘treatment together’ for the purposes of the 1990 Act. I am therefore satisfied,
even if section 28(3) could be construed as applying to married couples as well
as unmarried couples, that Mr and Mrs A were not being treated together within
the meaning of the subsection. Accordingly, section 28(3) cannot cover the present
facts.
Section
28(6)
- I
should, for completeness, refer to section 28(6). On the assumption that Mr B
was a donor of sperm, section 28(6) might apply if he had given such consent as
is required by paragraph 5 of Schedule 3, that is to say that he was not to be
treated as the father of the twins. It is clear, however, from the consent forms
filled in and signed by Mr B, which have been produced to the court, that he did
not consent to his sperm being used to fertilise the eggs of Mrs A or anyone else
other than his wife. His gametes were therefore not used in accordance with the
terms of the consent given by him.
The
Human Rights Act and the European Convention on Human Rights
- I
have heard submissions on articles 6, 8, 12 and 14 of the European Convention.
In my judgment the articles of the Convention other than article 8 are not infringed
and it is not necessary for me to explore them further. Clearly, however, article
8 is engaged and I shall therefore look in turn at the positions of Mrs
B, Mr B, Mrs A and Mr A, and the twins.
Article
8
- Miss
Parker argued that both Mr and Mrs B had a right to respect for family life in
relation to the twins. Miss Hamilton accepted that neither marriage nor living
together were necessarily a requirement for establishing family ties. In Kroon
v Netherlands (1994) 19 EHRR 263 the European Court held that
"…exceptionally
other factors may … serve to demonstrate that a relationship has sufficient constancy
to create de facto ‘family ties’."
- In
that case there were three subsequent children. Article 8 makes no distinction
between the legitimate and illegitimate family (see Marckx v Belgium (1979)
2 EHRR 330).
Mrs
B
- She
is the wife of Mr B. She has no blood relationship with the twins and in so far
as she has a right it is derived from her husband. She is, nonetheless, deeply
involved in the consequences of the mistake which must be a source of great distress
for her. Miss Parker submitted that the twins were the children of her husband
and her feelings for her husband would extend to his children and this would engage
her right to respect for a family life with them. She has, of course, had no de
facto relationship with the twins and, in my judgment, her article 8 rights are
not engaged at all.
Mr
B
- In
view of my decision that sections 28 and 29 of the 1990 Act are not applicable
to the facts of this case, a consideration of whether Mr B has rights under article
8(1) is largely academic. All the submissions, except those of Miss Parker on
behalf of Mr and Mrs B, emphasised that Mr B did not have a right to respect
for family life in relation to the twins. If that submission be wrong, in my judgment,
Mr B’s alleged article 8(1) right has not in any event been infringed since
his status as biological father is not to be displaced by the 1990 Act. In case,
however, these proceedings go further, I shall give my views briefly.
- Mr
B is the biological father of the twins in circumstances in which he has had no
opportunity to forge any relationship with them. Although he was clearly not a
consenting sperm provider other than in a treatment process with his wife, it
is, on the facts of this sad case, only the use of his sperm that connects him
with the twins. In M v the Netherlands (1993) 74 D&R 120 the European
Commission declared inadmissible a case on somewhat stronger facts than the present.
In that case, the biological father agreed to be a sperm donor to a lesbian couple
and after the birth of the child visited regularly and babysat on occasions. When
he sought greater contact with the child and the couple broke off contact with
him, his application to the courts was dismissed. On his application to the European
Court, the Commission rejected it out of hand and stated at paragraph 1 of the
judgment
"Family
life …. implies close personal ties in addition to parenthood…The Commission considers
that the situation in which a person donates sperm only to enable a woman to become
pregnant through artificial insemination does not of itself give the donor a right
to respect for family life with the child."
- This
was so despite the degree of contact M had had with the child. In this case, although
Mr B was not a consenting donor, his contact with the twins has been non-existent.
The approach of the Commission in M endorses its earlier decision in K
v United Kingdom (1986) 50 D&R 199. That judgment stated at page 207 that
family life depends upon
"the
real existence in practice of close personal ties."
- In
Re H; Re G (Adoption: Consultation of Unmarried Fathers) [2001] 1 FLR 646,
I said at paragraph 38
"Not
every natural father has a right to respect for his family life with regard to
every child of whom he may be the father (see also McMichael v United Kingdom
(1995) 20 EHRR 205). The application of Art 8(1) will depend upon the facts
of each case."
- Miss
Parker submitted that the decision of Scott Baker J in Rose v Secretary of
State for Health and Human Fertilisation and Embryology Authority [2002] EWHC
1593 (Admin) and of the European Court in Mikulic v Croatia (4th
September 2002; application number 53176/99; [2002] 1 FCR 720) should lead me
to a contrary conclusion. In my judgment, Rose can be distinguished. It
was a situation of children born by artificial insemination seeking to find their
personal paternal identity which was an important part of their genetic makeup.
The effect of Rose is limited to confirming the article 8(1) right of a
child to establish details of his or her identity. I do not therefore consider
that Rose extends the principle to the right of the parent as well as the
right of the child. In Mikulic, the issue was the establishing of paternity
by a child and the effect upon her personal identity which equally does not have
the same effect upon the father.
- Mr
B does not have a right to respect for his family life which might have been breached
if Mr A had been able to establish his presumption of fatherhood. I do not consider
it necessary to go on to consider his right to respect for his private life, which
Miss Hamilton accepts exists, since I do not consider it is sufficiently engaged
by the issues in this case.
Mrs
A and Mr A
- Mrs
A is the natural, biological mother of the children and it is beyond argument
that her rights under article 8(1) are clearly engaged in this case. Mr A is in
the position of the father and has established a close relationship with the twins
whom he regards as his children. His rights are therefore also clearly engaged
under article 8(1) (see for instance, X Y & Z v United Kingdom (1997)
24 EHRR 263 paragraphs 36 and 37). My interpretation of sections 28 and 29 constitutes
an interference with those rights of Mr and Mrs A. Mr A has been deprived of the
presumption that he is the legal father. Miss Hamilton suggested that the infringement
of their rights was not saved by article 8(2) and was incapable of being remedied.
- The
questions that I have to consider are: whether it is necessary to try to fit the
facts of this case into section 28(2) or (3); whether it is indeed possible to
do so; and, if not, whether consequently I am compelled to grant a certificate
of incompatibility under section 4 of the Human Rights Act 1998, or whether article
8(2) would apply - in particular, whether there are other legal remedies that
would meet the breach of Mr and Mrs A’s article 8(1) rights. Miss Hamilton argued
that the interference with the rights of Mr and Mrs A could not adequately be
met by invoking alternative domestic family remedies. I do not agree with her
submission on this issue.
- In
my judgment it is not necessary to strain the language of section 28(3) to meet
the rights of Mr and Mrs A, nor is it necessary to consider the question of incompatibility
(see below). Within the domestic family legislation there are remedies which can
underpin and protect the position of Mr A with respect to the twins. Those remedies
include applications by Mr and Mrs A for section 8 orders under the Children Act
1989, the most immediate of which would be to make a residence order which would
give Mr A parental responsibility. I made a residence order to Mr and Mrs A during
the hearing of this case. Mr B does not have and cannot obtain parental responsibility
without the agreement of Mrs A or a court order under section 4 of the Children
Act 1989. He is not, as I understand it, seeking to make that application. Mr
B is the legal father of children born outside a marriage, and he can therefore
make a section 8 application by virtue of section 10(4) of the Children Act. It
is clearly a case to remain in the High Court. Such an application, if made, would
be decided under the provisions of the Children Act, in which the welfare of the
children is paramount (see section 1(1)).
Adoption
- I
recognise that, if sections 28(2) and (3) do not apply to Mr A, there is no legal
mechanism that can make him the legal father of the twins unless there is an adoption
order. Mr and Mrs A can apply under the Adoption Act 1976 to adopt the twins.
Miss Hamilton submitted that there would be an infringement of Mrs A’s right if
she was obliged to apply with Mr A for an adoption order. She would lose her right
to be the natural and legal mother of the twins by becoming their adopted mother.
Mr A would lose his right to be regarded as the legal father of the twins under
the 1990 Act. She suggested that it could not be assumed that an
adoption order would be made. In any event the period up to the conclusion of
the adoption proceedings would be stressful and would in itself discriminate against
and infringe the human rights of both Mr and Mrs A. She referred to paragraph
55 of the judgment of the European Court in Marckx v Belgium (above).
- In
accordance with the Adoption Rules 1984, rule 15(3), and the guidance given in
decisions such as Re H; Re G (above), the court may direct that any other
person be made a respondent to the process and Mr B could be made a respondent
in the discretion of the court. As a father without parental responsibility Mr
B could not be treated as a parent under section 16(1)(b)(ii) and (2)(b) of the
Adoption Act. There would therefore be no statutory opposition to the adoption
application and the court would focus solely on its fundamental duty under section
6 of the Adoption Act to promote the welfare of the twins throughout their childhood,
and would make an adoption order if it is shown to be in the best interests of
the twins to do so.
- In
my judgment the interference with the exercise of the rights of Mr and Mrs A under
article 8(1) is in accordance with the law. It can properly be cured by the legal
remedies available in our domestic law. The interference is necessary in a democratic
society and pursues the legitimate aim of protecting the rights and freedoms of
others, in this case the twins. It is proportionate in its aim to provide the
necessary protection of the twins whose rights and welfare must predominate (see
for instance Johansen v Norway (1997) 23 EHRR 33).
The
Twins
- Under
article 8 a court must consider the position of children under two separate heads,
their rights and their welfare. In the present case, the twins’ rights and welfare
are intertwined. The twins unquestionably have rights (see Marckx v
Belgium (above)). They are clearly entitled to respect for their family life
with their mother, Mrs A, and with Mr A whom they regard as their father. Through
no fault of theirs, they have been born children of mixed race by a mistake which
cannot be rectified. Their biological mother and their biological father are not
married and cannot marry. They may not be able during their childhood to form
any relationship with their biological father. They have inherited two cultures
but, in reality, can only gain real benefit from one during their childhood. Of
all the parties who have undoubtedly suffered from this mistake, the twins, who
at present know nothing of it, have had their human rights most obviously and
seriously infringed. Prior to this hearing they had a loving, stable and secure
family. Mr A is registered as their father on the birth certificate. The application
of sections 28 and 29 would, as Miss Hamilton submitted, give the twins the certainty
that Mr A is their legal father. If section 28 applies they would have a complete
sense of belonging to Mr A. If section 28 is found not to apply then there is
a period of uncertainty which is to their detriment. She suggested that their
rights would be infringed by the adoption process and by being given the
status of adopted children. They would be different from other donor sperm children
and this would underline the mistake which occurred in this case. I agree that
it is imperative that their rights and their welfare are secured and protected.
In Children Act proceedings their welfare would be the paramount consideration
and, similarly, in adoption proceedings the duty of the court would be to promote
their welfare throughout their childhood.
- In
my judgment the twins’ rights to respect for their family life with their mother
and Mr A can be met by appropriate family or adoption orders and those orders
would be proportionate to the infringements of their rights. The effect of the
decision of the court that sections 28 and 29 do not apply to their case does
not create any greater difficulty for the twins than the unfortunate circumstances
surrounding their conception and birth. Although they lose the immediate certainty
of the irrebuttable presumption that Mr A is their legal father, they will remain
within a loving, stable and secure home. They also retain the great advantage
of preserving the reality of their paternal identity. In
Re H and A (Paternity: Blood Tests) [2002] 1 FLR 1145, Thorpe LJ said at
paragraph 29
"I
do not consider that that factual distinction begins to displace the points of
principle to be drawn from the cases: first, that the interests of justice are
best served by the ascertainment of the truth and secondly, that the court should
be furnished with the best available science and not confined to such unsatisfactory
alternatives as presumptions and inferences."
- I
respectfully agree and am certain that the truth in this case is more important
to the rights of the twins and their welfare than a fictional certainty. This
is not a sperm donor case and should not be treated as such when considering the
position of the twins. To refuse to recognise Mr B as their biological father
is to distort the truth about which some day the twins will have to learn through
knowledge of their paternal identity. The requirement to preserve the truth will
not adversely affect their immediate welfare nor their welfare throughout their
childhood. It does not impede the cementing of the permanent relationship of each
of them with Mr A who will act as their father throughout their childhood. In
my judgment the infringement of the twins’ article 8(1) rights is met by the application
of article 8(2) and it is proportionate to those rights for this court not to
apply section 28(2) or (3).
Certificate
of Incompatibility
- I
am entirely satisfied that the issue of potential incompatibility of the 1990
Act with the Human Rights legislation does not arise in respect of any of the
parties to these proceedings. As I have set out above, the rights of Mr and Mrs
B are not infringed. In relation to the rights of Mr and Mrs A, it would be possible,
if I was compelled to do so by my duty to ensure the compatibility of domestic
legislation with the Human Rights Act, so to construe section 28(3) as to squeeze
into it the present situation and thereby avoid a situation of incompatibility.
But more to the point, there are alternative routes through domestic family legislation
which can give to Mr and Mrs A adequate protection and relief from the unhappy
situation in which they find themselves. The twins require love, security and
protection within their existing family, all of which can be ensured by domestic
legislation and they do not require, nor would it be to their advantage, for there
to be any consideration of incompatibility.
Conclusion
- For
all the reasons which I have set out above, I shall not make a declaration that
Mr A is the legal father. I shall not make a declaration of incompatibility of
the 1990 Act under section 4 of the Human Rights Act. I shall adjourn the application
of Mr B under section 55A of the Family Law Act. I shall hear submissions as to
whether I should make any other declarations as sought by the NHS Trust or the
Authority.