Leeds Teaching Hospitals NHS Trust v A and Others
| Jurisdiction | England & Wales |
| Judgment Date | 26 February 2003 |
| Neutral Citation | [2003] EWHC 259 (QB) |
| Docket Number | Case No: HQ02X02475/FD02P00895 |
| Court | Queen's Bench Division |
| Date | 26 February 2003 |
[2003] EWHC 259 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The President
Case No: HQ02X02475/FD02P00895
Mr Robert Francis QC (instructed by Hempsons) for the Claimant
Miss Eleanor Hamilton QC and Miss Elizabeth O'Hare (instructed by Lee and Priestley) for Mr and Mrs A
Mr Peter Jackson QC (instructed by the Official Solicitor)
Miss Dinah Rose (instructed by Morgan Cole) for the Human Fertilisation and Embryology Authority
Miss Judith Parker QC and Mr Charles Foster (instructed by Lester Morrill) for Mr and Mrs B
Mr James Eadie (instructed by the Solicitor, the Department for Work and Pensions and the Department of Health) as Intervenor
Mr Neil Garnham QC (instructed by the Treasury Solicitor ) Advocate to the Court
Hearing dates: 20 th, 21 st and 22 nd January 2003
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Dame Elizabeth Butler-Sloss, P.
The is the judgment of the President in this case which is being handed down on 26th February 2003 . It consists of 22 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported and for the purposes of any law report also hereby directs that no transcript of the judgment need be taken and that the version hereby handed down may be treated as authentic
The judgment is also being distributed on the strict understanding that in any report no person other than counsel or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Dame Elizabeth Butler-Sloss, P.:
This case has been before the High Court of the Family Division on several occasions. I gave a short judgment on the 4 th November 2002 (see [2003] 1FLR 412) setting out the facts which were then known. The main issue before the court at this hearing is to establish the legal parentage of YA and ZA (the twins). Everyone concerned with the problems which have arisen in this case agrees that the twins should remain with the family into which they were born, with Mr and Mrs A. It is clear from the facts now established that Mrs A gave birth to the twins and is their biological mother. It is equally clear from the DNA tests that Mr B is their biological father. Both families sought treatment within the provisions of the Human Fertilisation and Embryology Act 1990 (the 1990 Act). In order to establish the legal parentage of the twins, it is necessary to consider whether certain provisions of the 1990 Act, principally sections 28 and 29 and Schedule 3, apply to the facts of this case. If section 28( 2) or (3) applies, Mr A will be treated for all purposes as the father. If this case does not come within the provisions of section 28( 2) or (3), Mr B, as the biological father, will be the legal father. Because he was not married to the mother, however, he would not have parental responsibility for the twins unless it was specifically conferred upon him. In the event that it becomes necessary to make any decisions to ensure the long-term welfare of the twins, the legal status of their parentage must be established. At birth, they were registered as the children of Mr and Mrs A. Mr B has made an application under section 55A of the Family Law Act 1986, as amended, for a declaration of parentage. By agreement of all parties, I have adjourned that application generally.
The parties
I have been assisted greatly by the excellent written and oral submissions of all the counsel in this difficult case. Miss Parker QC, on behalf of Mr and Mrs B, submitted on the legislation that sections 28(2) and (3) did not apply and that Mr B was the legal father. Mr Eadie, on behalf of the Secretary of State for the Department of Health, (D of H), supported her submission. It was also supported by Miss Rose for the Human Fertility and Embryology Authority (the Authority), and by Mr Jackson QC for the Official Solicitor representing the twins. Miss Hamilton QC, for Mr and Mrs A, submitted that section 28 applied and that, in accordance with the irrebuttable presumption provided by section 28(4) and section 29(1), Mr A was the legal father. She was supported by Mr Francis QC, for the Leeds Teaching Hospitals NHS Trust, (the NHS Trust). Mr Garnham QC, instructed by the Attorney General as Advocate to the Court, very helpfully considered the submissions of all the other parties and submitted to the court that section 28 did not apply to the facts of this case.
Before considering the competing arguments on the 1990 Act, the relevance of the European Convention and the Human Rights Act 1998 to the 1990 Act and whether an issue of incompatibility arises, I shall set out a summary of the background facts surrounding the conception and birth of the twins which I largely take, with gratitude, from the skeleton argument provided by Miss Parker and her junior, Mr Foster.
The Background Facts
Mr and Mrs A and Mr and Mrs B attended at the Clinic run by the NHS Trust to undergo intracytoplasmic sperm injection techniques ("ICSI") using the eggs of the wife in each case and the sperm of the husband in each case.
Mr Leigh, giving evidence for the NHS Trust, in his fourth witness statement, dated 18 th November 2002, stated that:
a) Mrs A consented to her eggs being used and mixed with her husband's sperm. She did not consent to her eggs being mixed with named or anonymous donated sperm. She consented to the placing of not more than two resulting embryos in her uterus. She consented to her eggs and any resulting embryo being used in her own treatment or in any research project. She refused to consent to her eggs or embryos being used in treating others.
b) Mr A consented to his wife's treatment, and confirmed his understanding that he would be the father of any resulting child. He consented to his sperm being used to treat his wife. He refused to consent to its being used to treat others or for research. He consented to his sperm being used to fertilise his wife's eggs in vitro and to the embryos developed from these eggs being used in the treatment of himself together with a named partner, his wife. He refused to consent to the embryos being used for the purpose of treatment of others but did consent to them being used in any project of research.
c) Mrs B consented to her eggs being mixed with her husband's sperm and two resulting embryos being placed in her uterus. She did not consent to her eggs being mixed with donor sperm, and did not consent to any spare embryos being used for research purposes.
d) Mr B consented to his wife's treatment and records that he understood that he would be the father of any resulting child. He consented to his sperm being used to treat his wife. He expressly refused to consent to his sperm being used in treating others or in any research project.
By a 'mistake' (which I shall call it despite its inadequacy as a description of what occurred), Mr B's sperm were injected into the eggs of Mrs A. She became pregnant with the twins of whom she is the genetic mother and Mr B is the genetic father. None of the four parties involved consented. Mr and Mrs A are both white and, after the birth of the twins, it became apparent that they were children of mixed race. Behind the legal arguments which occupied the court for three days lies a tragic human story of two families trying to come to terms with the consequences of the mistake. It is, however, necessary to engage in the legal arguments because the mistake raises the issue of the status of the children. I respectfully agree with Wilson J who said in U v W (Attorney General Intervening) [1997] 2 FLR 282 at page 303
"….there is a particular need for certainty in provisions affecting status…"
The legislation
At common law, Mr B has the status of an unmarried father. He would not have parental responsibility by virtue of section 2(2)(b) of the Children Act 1989. The main argument in this case concerns the effect of the 1990 Act on the common law and the Children Act. I turn now to the relevant provisions of the 1990 Act. The preamble sets out the purpose of the legislation
"An Act to make provision in connection with human embryos and any subsequent development of such embryos; to prohibit certain practices in connection with embryos and gametes; to establish a Human Fertilisation and Embryology Authority; to make provision about the persons who in certain circumstances are to be treated in law as the parents of a child; and to amend the Surrogacy Arrangements Act 1985."
A clear purpose of this aspect of the 1990 Act is to make provision for certain persons to be treated as parents. The main question is whether these facts fall within the scope of the 1990 Act so as to give Mr A the status of father of the twins.
Section 1 describes the meaning of "embryo", "gamete" and associated expressions
(1) "In this Act, except where otherwise stated –
(a) embryo means a live human embryo where fertilisation is complete,
and
(b) references to an embryo include an egg in the process of fertilisation,
and, for this purpose, fertilisation is not complete until the appearance of a two cell zygote.
(2) This Act, so far as it governs bringing about the creation of an embryo, applies only to bringing about the creation of an embryo outside the human body; and in this Act –
(a) references to embryos the creation of...
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