Z (Embryo Adoption: Declaration of Non-Parentage)

Factual and Procedural Background

This case concerns an application for a declaration of non-parentage in respect of a child, TSA, born on 14 March 2013. The Applicant, RQ, and the 1st Respondent, PA, were in a relationship and sought fertility treatment due to PA's prior vasectomy and RQ's age. They pursued embryo adoption through a clinic in Spain after initial advice from a UK fertility clinic. Both parties signed documents consenting to the use of cryopreserved embryos from donors and acknowledging that they would not contest the child's affiliation.

The embryo was transferred abroad, and TSA was born in the UK. The birth was registered with PA named as the father. The parties separated shortly after TSA's birth, with TSA remaining in the care of RQ. PA has had no contact with TSA since separation and does not seek involvement. In 2014, PA refused to pay child maintenance on the basis that he was not TSA's biological father. RQ then sought a legal declaration that PA is not TSA's father and that the birth certificate be amended accordingly.

The application was made in April 2018, TSA was joined as a party due to the lifelong implications of the declaration, and the Children's Guardian was involved. No safeguarding or welfare concerns were raised. Both the Applicant and the Children's Guardian supported the application, and PA agreed in writing to the declarations sought. The hearing took place on 10 July 2018, and declarations were made with reasons provided in this judgment.

Legal Issues Presented

1. Whether PA is the legal father of TSA under the relevant provisions of the Human Fertilisation and Embryology Act 2008 (HFEA 2008) given that the fertility treatment was carried out abroad and the parties were unmarried at the time.
2. Whether the court should grant a declaration of non-parentage in respect of PA in relation to TSA.
3. Whether the birth certificate should be amended to reflect the correct legal parentage of TSA.

Arguments of the Parties

Applicant's Arguments

• RQ contended that she is TSA's legal mother under s.33 HFEA 2008.
• PA is not TSA's legal father or parent as the embryo transfer occurred abroad, outside the jurisdiction of the HFEA licensed clinics in the UK.
• PA did not meet the agreed fatherhood conditions under ss 36 and 37 HFEA 2008, which require consent to be treated as the father in a licensed UK clinic setting.
• PA's inclusion on the birth certificate as father is inaccurate and should be corrected to reflect TSA's true legal parentage.
• PA does not have parental responsibility as he is not the legal father under the Children Act 1989.

Children's Guardian's Arguments

• The Guardian supported the application, reporting no safeguarding or welfare concerns.
• The Guardian was satisfied that RQ would provide TSA with an appropriate narrative about her origins and the role of PA.
• Recognised the importance of early disclosure to TSA to assist her understanding and acceptance of her origins.

1st Respondent's Position

• PA did not attend the hearing but confirmed in writing his agreement to the declarations sought.
• PA has consistently expressed no wish to be involved in TSA's life and denies biological parentage.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re Human Fertilisation and Embryology Act 2008 (Cases A,B,C,D,E,F,G and H) [2017] 1 FLR 366	Declaration of parentage in cases of assisted conception with incomplete clinic records.	The court distinguished the instant case on the basis that treatment was abroad and parties did not comply with HFEA 2008 requirements, thus the relief in that precedent did not apply.

Court's Reasoning and Analysis

The court analysed the legal framework under the Family Law Act 1986 and the Human Fertilisation and Embryology Act 2008 (HFEA 2008). It was undisputed that RQ is TSA's legal mother under s.33 HFEA 2008 as the woman who carried the child.

The court noted the distinction in the HFEA 2008 between married and unmarried women at the time of treatment. Since RQ and PA were unmarried, s.36 and s.37 HFEA 2008 apply, requiring treatment to be provided by a licensed UK clinic and consent by the man to be treated as father in a prescribed form. Neither condition was met because the embryo transfer took place at a clinic in Spain, and the required notices were not completed.

Accordingly, PA is not TSA's legal father under the HFEA 2008. The court further accepted submissions that naming PA on the birth certificate does not confer parental responsibility under s.4 Children Act 1989, as he is not the legal father. The court emphasized the importance of accuracy in legal parentage records for TSA's best interests.

The court also considered the implications of donor anonymity laws differing between Spain and the UK, highlighting the potential lifelong impact on the child and the moral responsibility of parties and clinics in fertility treatments, especially those conducted abroad.

Given the absence of any welfare concerns and the agreement of the parties and Children's Guardian, the court found it appropriate to grant the declaration of non-parentage.

Holding and Implications

The court issued a declaration of non-parentage that PA is not the legal father of TSA.

As a result, the Registrar General is to be notified so that TSA's birth certificate may be amended to remove PA as the father, correcting the legal record. The decision directly affects the parties by clarifying legal parentage and parental responsibility, but does not establish new legal precedent beyond the application of existing statutory provisions.