Re R (A Child) (IVF: Paternity of Child)
| Jurisdiction | England & Wales |
| Judge | LORD STEYN,LORD WALKER OF GESTINGTHORPE,LORD HOFFMANN,LORD HOPE OF CRAIGHEAD,LORD NICHOLLS OF BIRKENHEAD |
| Judgment Date | 12 May 2005 |
| Neutral Citation | [2005] UKHL 33 |
| Date | 12 May 2005 |
| Court | House of Lords |
[2005] UKHL 33
HOUSE OF LORDS
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Steyn
Lord Hoffmann
Lord Hope of Craighead
Lord Walker of Gestingthorpe
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Walker of Gestingthorpe. I agree that for the reasons he gives this appeal should be dismissed.
My Lords,
I have had the advantage of reading the opinion of my noble and learned friend Lord Walker of Gestingthorpe. I agree with it. I would also dismiss the appeal.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Walker of Gestingthorpe. For the reasons he gives, with which I agree, I would dismiss this appeal.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Walker of Gestingthorpe. While I have in the end reached the same conclusion as he has done, the appeal seemed to me to raise some very real problems and I have found the decision far from easy. So I would like to explain in my own words why, with some hesitation, I too would dismiss the appeal.
There is no doubt that the widening of the frontiers of human existence by the use of assisted reproduction technologies has raised new questions about how the legal relationships that result from their use are to be identified. The law has always attached a special significance to a person's status. In The Ampthill Peerage [1977] AC 547, 568G-H, Lord Wilberforce said:
"There can hardly be anything of greater concern to a person than his status as the legitimate child of his parents: denial of it, or doubts as to it, may affect his reputation, his standing in the world, his admission into a vocation, or a profession, or into social organisations, his succession to property, his succession to a title. It is vitally necessary that the law should provide a means for any doubts which may be raised to be resolved, and resolved at a time when witnesses and records are available. It is vitally necessary that any such doubts once disposed of should be resolved once and for all and that they should not be capable of being reopened whenever, allegedly, some new material is brought to light which might have borne upon the question."
Lord Wilberforce was describing there the status of legitimacy under the then current law in the context of a disputed peerage claim. But a similar view, with appropriate modifications, may be taken of the significance of the status of parentage in view of the legal consequences that flow from that relationship. The conferring of the status of father on a man who is not related to the child by blood or by marriage to the child's mother is a very serious matter, for the reasons which were mentioned by Hale LJ in the Court of Appeal: Re R (a child) (IVF: paternity of child) [2003] Fam 129, 137, para 20. It affects not only the relationship between father and the child but also the relationships between the child and the whole of the father's family. It has other important consequences. The law of succession confers entitlement to participate in the father's estate, and there may be a dependent claim against the tortfeasor in the event of the father's death due to negligence. The question whether a man is the child's father has a special significance during the child's minority, but the law of succession may require it to be answered much later in life. In keeping with other family relationships, it will have a vital and long lasting part to play throughout the child's lifetime.
The first step which was taken to recognise that a relationship of parentage could be created outside the blood relationship as a result of assisted reproduction technology was in section 27 of the Family Law Reform Act 1987, following a recommendation of the Law Commission in its Report on Illegitimacy (1982) (Law Com No 118), paras 12.1-12.27. That section provided that a child born to a married woman who had been artificially inseminated with the semen of some person other than the other party to her marriage was to be treated in law as the child of the parties to that marriage unless it was proved to the satisfaction of the court that the other party to the marriage did not consent to the insemination. The Law Commission's recommendation had been endorsed by the Warnock Committee of Enquiry into Human Fertilisation and Embryology (1984) (Cmnd 9314), para 4.17. The Warnock Committee recommended that the same approach should be taken in relation to ovum donation and embryo transfer: paras 4.22- 4.25 and 6.8. But that was a step too far for the time being, so far as the framers of the 1987 Act were concerned. Section 27 was sufficiently controversial in itself. As Professor Michael Freeman observed in his comment on this section in his annotations to the 1987 Act in Current Law Statutes, it was inconsistent with the rest of the Act which was informed by a desire to recognise the true father as the lawful father of the child. What section 27 did was to recognise as the father of the child someone who, because the semen was not his, was not the child's genetic father. But it did so only in the case of married couples.
Section 27 of the Family Law Reform Act 1987 was extended to all the assisted reproduction techniques that were currently available by sections 27(1) and 28(2) of the Human Fertilisation and Embryology Act 1990. As these techniques include treatment by the use of a donated embryo or of donated eggs as a result of which the woman carrying the child is not the child's genetic mother it was first necessary to identify the person who is to be treated in these circumstances as the mother of the child. Section 27(1) of the 1990 Act achieves this in plain and simple language. The woman who is carrying or has carried a child as a result of the use of these techniques, and no other woman, is to be treated as the mother of the child. Turning then to the question who is to be treated as the father of the child, section 28(2) adopts the same formula as was used in section 27 of the 1987 Act. It addresses the situation where the woman was a party to a marriage at the time of the placing in her of the embryo or the sperm and eggs or of her insemination and the creation of the embryo was not brought about with the sperm of the other party to the marriage. It provides that, unless it is shown that he did not consent to this, the other party to the marriage is to be treated as the father of the child. Here too the test that the subsection lays down for establishing the relationship of fatherhood is a plain and simple one which leaves no room for doubt. The moment of time to which the question whether she was a party to a marriage is addressed is the time when the embryo or the sperm and eggs are placed in the woman. If she was a party to a marriage at that time, the marriage relationship that then existed is used to identify the person who will become the child's father when it is born.
So far so good. But what if the mother is not a party to a marriage but is in a relationship with a man at the time when the embryo or the sperm and eggs are placed in her? The simple rule which section 28(2) lays down cannot be applied in that case. Is the child born as a result of that treatment then to be fatherless, and is the other partner to that relationship to be denied the opportunity of becoming a father simply because he is not married to the person who will become the child's mother? That is the problem to which section 28(3) is addressed. This subsection is the result of an amendment which was introduced at third reading in the House of Lords by the Lord Chancellor, Lord Mackay of Clashfern, following his consideration of an amendment of a similar nature which had been proposed and discussed during the report stage. He gave this explanation for the amendment: Hansard (HL Debates) 20 March 1990, cols 209-210:
"The conclusion I have reached is that if it is to remain possible for unmarried couples to receive the benefit of treatment to bring a child into being, both should have imposed upon them the responsibility for the child. I was most concerned that this proposal should not be seen as encouraging unmarried people to use infertility treatments, thus perhaps undermining marriage, or leading to children having unsuitable social fathers because of the difficulty in distinguishing partners to stable relationships from more transitory ones. On reflection, having regard to the other provisions of the Bill, these considerations should not deter us from inserting this amendment."
My noble and learned friend Lord Walker has set out sub-sections (1)-(4) of section 28 so that subsection (3) can be seen in its context, so I do not need to repeat this exercise. In summary what section 28(3) does is to deal with the situation where, because woman was not a party to a marriage when the embryo or the sperm and eggs were placed in her, no man is treated as the father of the child by virtue of section 28(2) and, because the creation of the embryo was not brought about with his own sperm, the man is not the child's genetic father. It assumes that the treatment has been sought by the man and the woman together, in the Lord Chancellor's words, as an "unmarried couple". It then uses the fact that they were being provided with the treatment services "together", rather than the mere fact of their relationship as an unmarried couple, to lay down the test that is to be applied to determine whether the man is to be treated as the father of the child. It does this by providing that the man shall be treated...
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