No father for IVF child

Dr Kirsty Horsey

Progress Educational Trust

01 March 2003

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[BioNews, London] Judges in the UK have ruled that a man who did not continue IVF treatment with his former partner is not the legal father of the child born. The mother of a child born following IVF treatment succeeded in her appeal against a previous court ruling that her former partner was the child's legal father.

The couple had started IVF treatment together, using donated sperm because the man was infertile, but had separated after initial attempts at IVF were unsuccessful. The mother later continued the treatment and gave birth to a girl in February 2000. The man applied to the courts for parental responsibility and contact with the child, on the basis that he was her legal father. The High Court issued a declaration of paternity, finding that because the clinic did not know the couple had separated, and the treatment had begun following consent from them both, section 28(3) of the Human Fertilisation and Embryology (HFE) Act 1990 applied. This says that when unmarried couples receive licensed fertility treatment together, the male partner will be legally recognised as the father of any child born.

The Court of Appeal was asked to reconsider this ruling. It said that the time at which to consider whether a couple had received treatment together, for the purposes of section 28(3), was when the embryo was placed in the woman, and that this was the 'natural and ordinary meaning of the statutory language'. There was clear evidence, the judges said, that the man and woman were no longer being provided with treatment services together at the relevant time'.

Lady Justice Hale, who gave the ruling of the Court of Appeal, said 'it may be the mother or the father who is seeking to establish or deny paternity for a variety of reasons: gone are the days when it was always the mother wishing to prove paternity against a man who denied it'. She added, 'had this mother been wishing to extract child support from this man, the court would have been slow to adopt a construction (of the Act) which would allow her to do so'.

Another ruling on paternity, to establish which of two men is the legal father of mixed-race twins born to a white woman after a mistake at a fertility clinic, was due to have been made this week. But, following the Court of Appeal's ruling, it has been postponed to allow the judge in that case, Dame Elizabeth Butler-Sloss, to consider if the recent court decision has any impact.

Reproduced with permission from BioNews, an email and online sources of news, information and comment on assisted reproduction and genetics.