Summary of Judgment - A and J and O (Declaration of Parentage)
| Jurisdiction | Northern Ireland |
| Neutral Citation | Summary of Judgment - A and J and O (Declaration of Parentage) |
| Court | Court of Judicature (NI) |
| Date | 19 January 2022 |
Judicial Communications Office
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12 January 2022
COURT DISMISSES APPEAL FOR A DECLARATION OF
PARENTAGE IN CASE WHERE A CHILD WAS BORN TO SAME
SEX COUPLE BY DONOR INSEMINATION
Summary of Judgment
The Court of Appeal
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today dismissed an appeal for a declaration of parentage in a case where a
child was born to a same sex couple by artificial insemination using a sperm donation.
A and J are a same sex couple who met O with a view to him donating sperm so they could have a
child. A child, referred to as R, was born in 2014 and J was registered as his mother. It was agreed
between A, J and O that R would be co-parented by A and J. J changed her surname to that of A so
that all three had the same surname. There was agreement between the parties that a joint residence
order in respect of R should be made in favour of A and J, although there was a dispute between O
and A and J about the extent of any contact he should have with the child. The following year, A
and J entered a civil partnership. Two further children have been born to J with A being registered
on each birth certificate as the other parent.
In 2015, A petitioned for a declaration of parentage pursuant to Article 31B of the Matrimonial and
Family Proceedings (NI) Order 1989 (“the 1989 Order”). This was refused by the trial judge. A
Notice of Incompatibility was served on 10 March 2021 contending that insofar as sections 42 and 43
of the Human Fertilisation and Embryology Act 2008 (“the 2008 Act”) prohibited the making of a
declaration of parentage the provisions were incompatible with the Article 8 and 14 ECHR rights of
A (“the appellant”). Similarly, it was contended that insofar as Article 31B did not provide for the
making of such a declaration it also was incompatible with the ECHR rights.
Sections 42 to 45 of the 2008 Act deal specifically with who is to be treated in law as the parent of a
child born to a woman in a same sex relationship:
Section 42 relates to the circumstances where the mother was a party to a civil partnership
with another woman at the time of the artificial insemination and that the other party to the
civil partnership was to be treated as a parent of the child unless it was shown that she did
not consent to the artificial insemination. It was on that basis that the appellant was
registered as the other parent of the two children born after she and A entered a civil
partnership.
Sections 43 and 44 deal with the situation where the same sex female partners were not in a
civil partnership and in those circumstances, where the artificial insemination services were
provided in the UK by a licensed person and written notice was given in advance by the
mother, and the other female consenting to the other female being treated as a parent, then
the other woman was to be treated as a parent of the child.
The court said the 2008 Act provided a “bright line legislative scheme” with the aim of recognising:
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The panel was Lord Justice Treacy, Lord Justice McCloskey, and Sir Declan Morgan. Sir Decla n Morgan
delivered the judgment of the court.
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