D (a child), Re

Factual and Procedural Background

The Respondent (an unmarried woman) and the Appellant (her then partner) sought assistance from a licensed fertility clinic in 1992 after the Appellant’s infertility was diagnosed. Both attended counselling and, in 1996 and 1998, the Appellant signed written acknowledgements confirming his wish to be treated as the legal father of any resulting child.

Three attempts at artificial insemination with donor sperm failed in 1997. In 1998 twelve of the Respondent’s eggs were fertilised with donor sperm. The first embryo transfer failed; the second, on 4 May 1999, succeeded. By that time the parties’ relationship had ended. The Respondent informed the clinic of the separation only months later.

The child (“Child”) was born on 5 February 2000. The Appellant applied in the County Court for parental responsibility and contact. At the first hearing it was conceded that he was the father. Subsequent appellate scrutiny led to a preliminary issue on jurisdiction. Judge [Hedley] declared the Appellant to be the father, but the Court of Appeal (per Judge [Hale]) reversed that declaration. The Appellant appealed to the House of Lords, which, by a majority, dismisses his appeal in the present opinion.

Legal Issues Presented

1. What is the correct interpretation of section 28(3) of the Human Fertilisation and Embryology Act 1990, specifically the phrase “treatment services provided for [the woman] and a man together”?
2. At what precise moment must the statutory test be applied—when the embryo is placed in the woman, or at some earlier or later stage of the treatment process?
3. What evidence is admissible and decisive in proving that treatment services were provided “together”: the clinic’s records, the parties’ perceptions, or both?
4. Does Article 8 of the European Convention on Human Rights confer any independent right on the Appellant to be recognised as the Child’s father?

Arguments of the Parties

Appellant's Arguments

• Emphasised the need for certainty and clarity; once the clinic accepted the couple for treatment and he signed acknowledgements, fatherhood should be irrevocably fixed unless he expressly withdrew.
• Relied on clinic records and staff perception as the objective evidence of “treatment … together”.
• Invoked Article 8 ECHR, contending that a right to respect for family life required recognition of his legal parenthood.

Respondent's Arguments

• Contended that section 28(3) must be applied at the moment of embryo placement; by that time the couple had separated and there was no joint enterprise.
• Argued that fatherhood should not be imposed where it would be a “fiction”, especially if based on deception or outdated assumptions.
• Submitted that the welfare of the Child and the statutory framework override any Article 8 claim.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge [Walker], delivering the principal speech, agreed with the Court of Appeal that section 28(3) must be construed according to its “plain and simple” wording:

• Temporal focus: The relevant moment is when the embryo (or sperm and eggs) is placed in the woman; conditions must be satisfied at that exact time.
• Factual inquiry: Whether treatment services were provided “together” is a question of fact for the trial judge, assessed on all evidence—clinic records and the parties’ conduct alike.
• No statutory priority: Neither the clinic’s perception nor the parties’ subjective intentions automatically prevails; elevating one would add an impermissible gloss.
• Certainty vs. reality: A rigid “once together, always together” rule could impose parenthood where the relationship had already ended, undermining the statute’s purpose and a child’s welfare.
• Record-keeping: While accurate clinic records promote certainty, they cannot override contrary factual realities; the judgment urges more robust procedures (e.g., periodic renewal of acknowledgements) but recognises that legislation did not make them determinative.
• Human Rights: Article 8 ECHR offered no independent footing; until parenthood is established, no family life right arises.

Holding and Implications

APPEAL DISMISSED.

The House of Lords affirmed the Court of Appeal’s decision that the Appellant is not the legal father under section 28(3) because, by the time of embryo transfer, treatment services were no longer being provided for the couple “together.”

Implications: The judgment clarifies the evidential test under section 28(3) and stresses that legal fatherhood for unmarried partners in assisted reproduction hinges on contemporaneous joint participation, not on historic acknowledgements or clinic perceptions alone. Clinics are encouraged to adopt stricter, renewable consent procedures, but no new precedent beyond statutory interpretation was set.