Associate family lawyer Anest Mathias, assisted by trainee Amanda Mhlanga, instructed James Turner KC, Naomi Wiseman and Joe Landman to represent the applicant in P v Q and Others [2024] EWFC 85 (B)(Fam) – an important ‘modern families’ case – with judgment handed down by Mrs Justice Gwynneth Knowles on 19 April 2024.
Our client, P, was in a female same sex marriage with Q. They wanted a child, it was agreed that P would carry their child. Initially they attempted to conceive using sperm ordered and imported online from a clinic in Denmark. This method was unsuccessful as well as expensive. They sought a known donor and placed an advert online finding F. They met F and formed a favourable impression of him. The parties signed a “Sperm Donor Agreement” obtained online. F agreed not to demand or seek any parental rights in respect of the child conceived through the artificial insemination (“AI”) process. This document has no legal status whatsoever.
There were two unsuccessful attempts of AI using F’s sperm, the two unsuccessful attempts of AI left P feeling unhappy, desperate and placed her relationship with Q under great strain. P reached out for comfort from F and arranged to meet him at her parents’ home. P found F friendly and sympathetic and whilst at her parent’s home, P initiated sexual intercourse or natural insemination (NI) with him. P and F had sex a total of three times at her parents’ home. Q was not aware of P and F’s meeting, nor about the NI.
The third and final attempt of AI took place a day or two after P and F had sexual intercourse. P found out that she was pregnant a couple of weeks later with X.
P and Q were registered as the parents of X. By arrangement with P and Q, F saw X once before P and Q separated. P and Q separated and subsequently divorced. Following their separation P began communicating regularly with F and he became involved in X’s life. X knows F is her biological father.
Following the breakdown of P and Q’s relationship, court proceedings were issued to determine the child arrangements for X. P and Q disagreed as to the involvement of F in X’s life. P then asserted her belief that X was conceived as a result of sexual intercourse rather than AI. The judge was satisfied that P and F had had sexual intercourse on several occasions prior to the third attempt at AI for which F acted as a sperm donor. She was unable to find on a balance of probabilities whether X was conceived by AI or NI.
A child can have a maximum of two legal parents. P would always be X’s legal mother. The question which the court had to determine was who in law was X’s second parent.
If X had been conceived through AI then Q would be her legal parent by virtue of the s.42 of the Human Fertilisation and Embryology Act 2008 which states that:
“If at the time of placing in her of the embryo or the sperm and eggs or of her artificial insemination, W was a party to a civil partnership with another woman or a marriage with another woman, then subject to section 45(2) to (4), the other party to the civil partnership or marriage is to be treated as a parent of the child unless it is shown that she did not consent to the placing in W of the embryo or the sperm and eggs or to her artificial insemination (as the case may be).”
If X had been conceived through NI then F would be X’s legal father.
There are no reported cases where the court has had to determine who would be a child’s legal parent when the method of conception could not be determined as was the case here.
There is a common law presumption that a child born to a woman during a marriage is also the child of her husband. This can be displaced with evidence to the contrary, such as DNA testing. The Marriage (Same Sex Couples) Act 2013 specifically does not extend this common law presumption and so the fact that P and Q were married did not create a presumption that X is Q’s legal child.
The starting point at common law is that P is X’s mother and that F, her biological father is her father. This remains the case unless it could be displaced by the provisions of the Human Fertilisation and Embryology Act 2008.
The judge considered a number of cases where the requirements of the Human Fertilisation and Embryology Acts have been examined. Case law has consistently upheld the need for compliance with Act. The Act only governs situations within its footprint which included the requirement for the child to have been carried by a woman as a result of the placing in her of an embryo or of sperm and eggs or her artificial insemination, to determine who is to be treated as the other parent of the child. Section 42 of the Human Fertilisation and Embryology Act 2008 creates a rebuttable presumption that consent exists in the case of a marriage and that assisted reproduction is the method of conception. That presumption can be rebutted by evidence which shows that consent has not been given and / or that assisted reproduction may not have occurred. The judge had found that Q did not consent to anything other than assisted reproduction, but the method of X’s conception was unclear. In those circumstances the presumption of Q’s parenthood was rebutted, and the common law position applied.
The Judge made the declarations sought by P, namely that F is the legal parent of X, and that Q is not X’s legal parent.
There will be a welfare hearing later this summer which will consider parental responsibility. F will need to consider whether he wishes to play a greater role in X’s life and whether he seeks any orders.
The judge introduced the case by stating:
“This case is a cautionary tale about the consequences for a child and for a same-sex couple of both deceit as to how that child came to be conceived and the unreliability of informal arrangements for artificial insemination. The fallout from this couple’s separation has been devastating for each of them and for their named sperm donor.”
We wholeheartedly agree. This case highlights the importance of taking legal advice prior to conception and understanding the need for compliance with the parenthood provisions of the Human Fertilisation and Embryology Act 2008. As in the case of M v F & H (Legal Paternity) [2013] EWHC 1901 (Fam) it should not be forgotten that a much wanted child has been born.
How we can help?
In our modern society, there are a number of different routes to parenthood. We advise intended parents and donors about the legal implications of the routes they are considering or have chosen. For further information or a preliminary chat about modern parenting, please contact Anest Mathias on 020 3440 8049 or Anest.Mathias@tvedwards.com.
Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.