The Court of Appeal (CoA) confirmed a High Court decision that a sperm donor can be the legal father of a child.
Background:
This case concerned an application by a biological mother (P) regarding the legal parentage of a child, X, who was conceived through both artificial and natural insemination, leading to a dispute over who should be recognised as her legal parents. In April 2024, a High Court Judge declared that F was the legal father of X and removed Q, P's former spouse, from X's birth certificate.
P and Q agreed with F that he would act as their sperm donor. On three occasions, F provided sperm that was used for the artificial insemination of P. The statutory code contained in the Human Fertilisation and Embryology Act 2008 (HFEA 2008) provides that this means of conception would confer legal parentage on Q. Unknown to Q, and at the same time as the AI was taking place, P and F engaged in sexual intercourse involving natural insemination, also on three occasions.
When X was aged three, P and Q separated and later divorced. There were disagreements about the arrangements for X and P revealed to Q that she had also had sexual intercourse with F and asserted her belief that X had been conceived as a result of natural insemination despite their attempts at artificial insemination. P asserted, therefore, that Q had not properly acquired parental status under s.34 and s.42 HFEA 2008 because Q had not consented to natural insemination and there was uncertainty as to the manner of conception. In April 2024, a High Court Judge declared that F was the legal father of X and removed Q, P's former spouse, from X's birth certificate. Q appealed.
Decision:
The Court of Appeal (CoA) dismissed the appeal, upholding that F is X's legal father. The CoA had to determine whether the legal parentage provisions under HFEA 2008 applied, given the mixed methods of conception. The Court reiterated that the HFEA 2008 provisions only apply in cases of assisted reproduction. Legal parentage could thus be displaced via Part II of the HFEA 2008.
Since it was impossible to determine whether X was conceived through artificial or natural insemination, the Court concluded that the common law principle of recognising genetic parentage applied. The Court refused the argument that legal parentage should be based on a previous understanding of Q's parental status. Instead, it is determined at the moment of conception.
The Court clarified that the burden of proof lay on P to demonstrate that F was the genetic father and that natural insemination had occurred. Once established, it was for Q to prove that the statutory provisions applied, which she failed to do.
Implications:
This case determines who bears the burden of proof on an application for a declaration of parentage. As the Court noted, it is an exceptionally unusual case, one that highlights the challenges in a case involving both natural and artificial insemination and its potentially unfair outcomes. However, in other cases, the courts might have sufficient evidence to find one means of conception more probable than the other.
Lord Justice Jackson concluded by noting that Q's position would be 'protected by the extensive powers of the Family Court to make whatever orders X's welfare would require'. It is, therefore, not the end of the story but it is concerning parental status.
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