Declarations of Parentage and Public Policy: No Recognition of a Non-Birth Mother Outside the HFEA 2008 Gateways

1. Introduction

In C v M & Anor [2026] NICA 32 (Court of Appeal in Northern Ireland, 12 June 2026), the Court of Appeal (Keegan LCJ, Treacy LJ and O’Hara J) considered whether a non-birth mother in a same-sex relationship could obtain a declaration of parentage under Article 31B of the Matrimonial and Family Proceedings (Northern Ireland) Order 1989 in respect of a child conceived through sperm donation outside the regulatory structure of the Human Fertilisation and Embryology Act 2008 (“HFEA 2008”).

The appellant and the child’s birth mother were in a longstanding relationship and later married. Conception occurred in 2018 via a known donor, not through a licensed clinic. The appellant sought legal recognition as the child’s second parent so that her name could be entered on the birth certificate. The application was supported by the birth mother and was no longer opposed by the donor, but it was opposed by public authorities (“the Departments”).

The central legal issue was whether, even if the factual proposition of intended parenthood was made out, making a declaration would be barred by Article 34 of the 1989 Order because it would be “manifestly contrary to public policy”—given that the case fell outside the parentage “gateways” in sections 42–44 HFEA 2008 and in light of Ms J, Ms A and Mr O [2022] NICA 3 (also referenced as A v O & J [2022] NICA 3).

Although discrimination arguments were advanced in the litigation history, the appeal proceeded on a narrower basis: no declaration of incompatibility was pursued. The appellant instead argued that public policy should permit recognition because, at the time of conception, same-sex marriage and publicly funded fertility treatment were not practically available to the couple.

2. Summary of the Judgment

The Court of Appeal dismissed the appeal and affirmed the refusal of a declaration of parentage. It held that, where the relevant HFEA 2008 conditions for second-parent recognition are not met (notably, conception/treatment not through a licensed clinic and no qualifying marital/civil partnership status at the relevant time), granting a declaration of parentage would be manifestly contrary to public policy under Article 34 of the 1989 Order.

The court concluded that A v O & J [2022] NICA 3 was dispositive: the statutory scheme prioritises certainty, clarity and consistency in legal parentage, and it is impermissible to create “exceptions” by case-by-case judicial declaration where Parliament has set tightly drawn conditions.

The court recognised the family reality (including that the appellant had parental responsibility) but held that psychological parenting and welfare considerations could not convert an informal arrangement into legal parentage absent satisfaction of the statutory gateways. Adoption remained the lawful route to full legal parenthood if the family wished to pursue it.

3. Analysis

3.1 Precedents Cited

  • Ms J, Ms A and Mr O [2022] NICA 3 / A v O & J [2022] NICA 3: The controlling authority in Northern Ireland. It held that it is “manifestly contrary to public policy” to grant declarations of parentage outside the HFEA 2008 scheme, warning against case-by-case declarations that would introduce “uncertainty and confusion” contrary to the Act’s design. In [2026] NICA 32, the court treated this as covering “the same territory” and refused to distinguish it on the basis of historical disadvantage.
  • AB v CD [2013] EWHC 1418 (Fam) and AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam): Cited for the proposition that courts must respect the “carefully crafted” regulatory scheme for assisted reproduction and that public policy favours upholding the tightly regulated regime, not relaxing it to cure hard cases.
  • U, Mrs v Centre for Reproductive Medicine [2002] EWCA Civ 565: The oft-cited statement (endorsed in multiple later cases) that “Centres, the HFEA and the courts have to respect” Parliament’s scheme “however great their sympathy” for individuals affected by it. Used here to reinforce that sympathy cannot drive legal parentage outcomes.
  • Re Close & Others [2020] NICA 20 and Day & Anor v The Governor of the Cayman Islands & Anor [2022] UKPC 6: Raised to argue that denial of same-sex marriage at the relevant time involved unjustified discrimination. The court accepted the historical point but held it did not create a lawful route to bypass the HFEA 2008 gateways (and noted Day’s criticism of Close without re-litigating it).
  • JR176(2) [2022] NIKB 21: Cited to contextualise the post-2019 change in publicly funded fertility-treatment eligibility criteria, supporting the background narrative but not altering the analysis that legal parentage depends on statutory conditions at the time and mode of conception/treatment.
  • X v Y [2023] EWFC 217, Re A and Others [2015] EWHC 2602 (Fam), A&B v Bourne Hall Clinic [2021] EWHC 1750 (Fam), A v B [2025] EWFC 43: Distinguished as “administrative failure” cases—where parties attempted to comply with licensed-clinic pathways but documentation failures undermined formal validity. The court stressed that those cases do not assist where the threshold statutory condition (treatment in a licensed clinic) was never satisfied.
  • X v Italy (Application No. 42247/23) and Mennesson France, no. 65192/11: Used in considering Article 8 dimensions and the child’s identity interests in parentage. The court noted that Article 8 may be satisfied where an alternative route (such as adoption) exists, even if birth registration does not reflect intended parentage.
  • P v Q and F (Child: Legal Parentage) [2025] 2 WLR 75: Relied on for propositions that (i) legal parentage is foundational; (ii) policy arguments cannot displace statutory analysis; and (iii) informal arrangements carry inherent risks. The quotation from Mrs U v Centre for Reproductive Medicine was reiterated, underscoring a consistent UK-wide approach to statutory parentage.
  • Re G (Children) (Residence: Same-sex Partner) [2006] UKHL 43: Cited (via P v Q and F) for the taxonomy of genetic, gestational, and psychological parenthood—used to illustrate that the law must still identify legal parents.
  • Re R (A child) (IVF: Paternity of Child) [2005] 2 AC 621: Quoted for the warning against basing legal parenthood on a “fiction,” reinforcing the court’s insistence that status must follow lawful criteria.
  • M v F & H [2014] 1 FLR 35: Cited in discussion of the “footprint” of the HFEA. The Northern Ireland court’s deployment of this authority emphasised that the statutory scheme governs where it applies, and debates about whether the scheme should be updated (e.g., for internet-facilitated unlicensed insemination) are for legislators, not courts.

3.2 Legal Reasoning

The court’s reasoning was anchored in the structure and purpose of the HFEA 2008 parentage provisions for same-sex female couples:

  • Section 42 confers parenthood on a wife/civil partner of the birth mother at the time of treatment/conception, subject to consent.
  • Sections 43–44 provide an alternative “licensed clinic + written consent notices” route where the couple are not married/civil partnered.
  • Section 47 states the negative proposition: a woman is not to be treated as a parent where she did not carry the child, except where treated as such by sections 42/43 (or limited section 46 situations) or adoption.

Against that framework, the court treated public policy under Article 34 of the 1989 Order as serving the HFEA’s design objectives: legal certainty and consistency in parentage. The court rejected an approach that would create substantive exceptions by declaration of parentage where the statutory gateways were not met, holding that this would “circumvent the clear provisions” of the HFEA 2008.

The appellant’s attempt to distinguish A v O & J [2022] NICA 3 relied on the argument that historical restrictions on same-sex marriage and differential access to publicly funded fertility treatment effectively prevented compliance with section 42 and made section 43 unaffordable in practice. The court’s response was twofold:

  1. No complete legal barrier existed: the couple could have entered a civil partnership at the time, bringing them within section 42. Their decision not to do so was respected but did not justify judicial re-writing of parentage rules.
  2. Section 43 still required a licensed clinic: even if NHS funding was not available then, the statutory condition was not satisfied, and the court refused to treat financial or systemic obstacles as creating an Article 34 “public policy” exception.

The child’s position and “psychological parenthood” were acknowledged, but the court stressed that parental responsibility and welfare measures operate in a different legal domain from legal parentage and birth registration. The court noted that adoption is an available lawful route to align legal parentage with lived family life (an approach consistent with the analysis of X v Italy (Application No. 42247/23)).

3.3 Impact

The decision consolidates (and effectively reaffirms as binding in Northern Ireland) a strict proposition: Article 31B declarations of parentage cannot be used to confer second-parent status on a non-birth mother where the HFEA 2008 gateways were not met, because doing so is manifestly contrary to public policy under Article 34.

Practically, the judgment:

  • reinforces that families using known donors and informal insemination outside licensed settings should not expect later curative declarations of parentage;
  • preserves a narrow space for “documentation failure” cases where parties used licensed clinics but forms were missing/defective (as in X v Y [2023] EWFC 217 and related authorities);
  • signals that arguments grounded in fairness, hardship, or historical unequal access will not, without a live human-rights challenge, reconfigure the statutory allocation of legal parenthood;
  • places renewed emphasis on adoption (and, separately, parental responsibility orders) as the lawful mechanism to secure full status where HFEA routes were not followed.

The broader systemic implication is legislative: as internet-facilitated informal conception becomes more common (as noted in M v F & H [2014] 1 FLR 35), pressures may grow for statutory reform. The court’s stance is that such reform is for Parliament, not incremental judicial exception-making.

4. Complex Concepts Simplified

Declaration of parentage (Article 31B, 1989 Order)
A court order declaring whether a named person is (or is not) the legal parent of another named person. If granted, it triggers notification to the Registrar General and can affect birth registration.
“Manifestly contrary to public policy” (Article 34, 1989 Order)
A statutory “stop” power: even if the factual claim is proved, the court must refuse the declaration if making it would obviously conflict with fundamental policy. In this context, the policy is the integrity and certainty of the HFEA 2008 parentage scheme.
HFEA 2008 “gateways” for a second female parent (sections 42–44)
Parliament created specific conditions under which a non-birth mother becomes a legal parent: marriage/civil partnership at the relevant time (section 42), or treatment at a licensed UK clinic with signed written consents (sections 43–44).
Section 47 HFEA 2008
A “no other route” provision: it confirms that a woman who did not carry the child is not treated as a parent unless she qualifies under sections 42/43 (or certain limited provisions) or via adoption.
Parental responsibility vs legal parenthood
Parental responsibility grants authority to make decisions for a child and reflects caregiving reality, but it does not make a person a legal parent for all purposes, nor does it automatically determine what appears on a birth certificate.

5. Conclusion

C v M & Anor [2026] NICA 32 confirms that Northern Ireland courts will not use Article 31B declarations to “fill gaps” in the HFEA 2008 regime for same-sex female couples where conception occurred outside the statutory gateways. The “public policy” in Article 34 is identified with maintaining the HFEA’s certainty-driven allocation of legal parentage, rejecting ad hoc exceptions even in sympathetic cases.

The judgment’s key takeaway is stark but clear: where licensed-clinic and consent formalities (or qualifying marital/civil partnership status at the relevant time) were not satisfied, the route to full legal parenthood lies not in declaratory litigation but in the mechanisms Parliament has provided—most notably adoption—alongside parental responsibility and welfare orders that can still recognise and protect the child’s lived family relationships.