Unlicensed fertility treatment and paternity – new clarification in recent case law

25 Mar 2019

Anest Mathias, associate Solicitor of Osbornes Solicitors represented Mr H in the case of Re M [2013] EWHC 1910. The Court was considering an application for a declaration of paternity.

The issue in contention was whether it could be ruled that Mr H, the now ex-husband of the child in question mother, Ms M,  was the legal father of the child which was biologically unrelated to him and had been conceived through the use of a non-anonymous sperm donor, Mr F, contacted through an unlicensed website.

Section 35 of Human Fertilisation and Embryology Act 2008 (HEFA) provides a mechanism whereby a husband may become the legal father if a child, even though he is not the biological father. Section 42 of the same act is virtually identical except that it applies to civil partners. Mr F argued that on the basis of section 35 of the act, Mr H was the legal father as the child was conceived through artificial insemination (AI) with his consent.

Mr Justice Jackson disregarded this argument and held that Mr F was the legal father of the child owing to the fact that the child was conceived as a result natural insemination (NI) more commonly referred to as sexual intercourse. Mr Justice Jackson also ruled on the issue of consent finding that consent for the purpose of section 35 of HFEA was not present considering the facts of this case..

The case has been reported in a number of national newspapers. Mr F was ordered to pay Mr H’s costs (£13,000) Ms M’s costs from the date she became publicly funded (£61,000) and he is liable for his own costs which were estimated at £200,000. Mr F will also be liable for child maintenance. Mr F’s sexual behaviour was also reported in the papers.

Section 35 and the issue of consent

To satisfy section 35 of the HEFA thereby making our client Mr H the child’s father, Mr F would have had to show that our client Mr H had consented to the AI and the use of a sperm donotr. The truth of the matter is that when Ms M, who was Mr H wife at this time, first sent an email to Mr F, she advised him that Mr H was excited about donor insemination. This was not in fact true, she hoped to bring him round. Mr H was aware of the email which Ms M had sent to Mr F. However he was opposed to the AI and argued with Ms M about it on their way to meet Mr F. Mr H did not communicate this lack of consent to Mr F when they met briefly. Mr H left Ms M and Mr F who then provided sperm which was used for AI.

This did not result in pregnancy and further visits took place where Mr F provided sperm through natural insemination (NI). The Judge found that Mr H had acquiesced as to the AI which took place as to the first meeting; however this did not amount to consent for the purposes of section 35 of HFEA.   Mr F did not ask Mr H whether he consented and by the time of the second meeting, Mr F was well aware of Mr H’s lack of consent.

Mr Justice Jackson did not accept the argument on behalf of Mr F that it must be proved not only that there was an absence of consent but also that the absence of consent had been communicated to all those affected for Mr H not to be the legal father of the child.

The Judge did not accept the argument put forward by Mr H’s that the HFEA does not apply to unlicensed treatment. He said that “If unlicensed AI is becoming more prevalent as a result of the internet, there may be a strong argument for reviewing a statutory scheme that has licensed AI as its paradigm. But what the law is and what it ought to be are two different questions.”

The dangers of unregulated donor websites

Whilst it is easy to see how the case may be sensationalised to provide newspaper reading this case does raise a number of different issues about these informal AI agreements made through an unregulated website.

A quick internet search makes it clear that informal AI is becoming increasingly prevalent. Search results will provide website with details of willing donors, all ready to donate.

In this case Ms M was supplied with a document from the website in question entitled ‘Donor Agreement’ that purports to record agreement that the donor will have no rights in relation to the child and that the mother and the child will have no rights against the donor in any circumstances.

The validity of these agreements was raised in court and Mr Justice Jackson stated that one of the courts concern was that documents of this kind create the false impression that these informal arrangements are somehow regulated. While there is nothing wrong, and much to be recommended, in people recording their intentions, no one should be misled into believing that will have legal effect. This document does not have legal effect, whatsoever.

If Mr F had only donated sperm through a licensed clinic then he could have been afforded legal protection and would not be the legal father of the child.  In effect the court ruled that there is no such provision for sperm donors who provide sperm through unlicensed means.

 It was argued on behalf of Mr F that the HFEA governs parentage in all cases and that if Mr H was ruled out as a father because he did not consent to the AI ( this was argued before the Judge made his findings that the child was conceived through NI) then the child would not have a father.

Mr Justice Jackson rejected this argument confirming that the statute only governs situations which are within its footprint and the situation described was outside the footprint of the HFEA and therefore it would not apply. In reality there are only a limited number of cases where an unlicensed sperm donor will not be the legal father of any child conceived as a result of his donations.

Mr Justice Jackson went further and said that on the evidence heard, “there is no effective control whatever of the activities resulting from websites of this kind: for example, although it is said to be a cardinal rule of the website that it is ‘AI only’, Mr F’s own public profile on the site openly advertised him as offering ‘AI and NI’.”

Treatment through a licensed clinic

When a donor provides sperm through a licensed clinic, it is used in a maximum of 10 families. Mr F in this case on his own account had fathered some 30 children. Mr F had disclosed a lower figure than this on one of the websites he advertised on. The Judge commented that these were “lies that would only work to his benefit by disguising a level of hyperactivity that might have deterred responsible approaches.” There are very real reasons why the amount of families which a donor may donate too are limited. If a child is conceived through artificial insemination through a licensed clinic then it is possible that a donor conceived child can receive information about their donor, this guarantee does not extend to children conceived through informal arrangements.

As mentioned these unregulated websites do promote only AI, however the Judge also found that Mr F in maintaining his website activity was meeting his own needs at least on a sexual level. “Mr F did not commonly engage in extended continuous asexual relationships with the women he met through the website. He has an unmistakable track record of inveigling or encouraging recipients into engaging in sexual activity with him from the very first meeting. Ms M’s account of Mr F making a pass at her during the first meeting is consistent with descriptions given by others. Of note, Mr F accepted that he had given her the option of AI or NI within minutes of their first meeting, which was highly inappropriate when she was a stranger who had come for AI.”

“His prolific sexual activity with recipients amounted to a brazen flouting of the rules of the website, such as they were. In one relevant period of 2-3 months alone, he was on his own account having sex with three women and providing AI to two others. Most of these contacts had to be kept secret from the other women involved. The sheer logistical challenge alongside his professional life will have been a burden that he would have been likely to have laid down if he had not been driven on by some degree of compulsion.”

Obviously the process when using a licensed clinic is completely anonymous and would only involve AI.

The Judge had described the profound feelings which must often be felt by those seeking children. In Ms M’s case these included “a yearning for children, a need for friendship and a hunger for sex, forces that can overpower and defeat routine social conventions”.

The purpose of this article is to address the issue of legal parenthood only. It does not describe emotional parenthood and the relationship that a child will have with its legal parents and biological parents.  A topic which has also been subject to litigation in the courts, perhaps with a theme that at the time of conception there were different expectations as to what role each party would play and following conception the differing emotional responses to parenthood.

The Court has determined that it is possible for a biological parent who is not a legal parent (as section 42 of HFEA applied) to apply for permission to apply for contact. Whilst the Court was not required to consider the child’s welfare in re M, the child’s welfare is a paramount consideration in cases where the Court is asked determine a child’s residence and contact.

Welfare of the child is another reason to use a licensed clinic. Such clinics must follow strict regulations which include offering counseling services to all parties to consider the implications of treatment before a patient consents to treatment. The counseling offers the opportunity to consider the needs and legal rights of donor conceived children.

The Re M case has had a huge impact on all those involved, financially and emotionally, it has led to the breakdown of the marriage of Ms M and Mr H. It is easy to concentrate on the negatives and to forget that Ms M has had a much longed for child. Mr H has commented that when Ms M sent the email saying that he was excited about donor insemination and he did not correct it, he had no idea that it could be construed in a way to make him the legal father of the child (although of course ultimately it did not). It would be easy to have sympathy for Mr F who would still have been held to be the legal father if a child had been conceived at the first meeting where Mr F could well have (wrongly) believed that Mr H consented to the artificial insemination.

The importance of the judgment in this case cannot be underestimated. The argument as to ‘consent’ was clarified and now defines consent in HFEA. The case confirmed that legal parenthood can be changed through unlicensed artificial insemination. The issue and morality of unregulated websites also received full attention in a court of law and was exposed to be a vehicle which provides no protection to any of the parties involved and does not consider at all the welfare of the child. What is clear from this case is the popularity and continued use of such sites may need to be addressed via statute.

What has also been highlighted in this case is the use of NI, usually instigated by the donor, which in itself raises questions about the possible exploitation of woman using such sites with the desire to have a child and the lengths they will go to in order to fulfill such a desire. These issues were not under consideration in this case, however they certainly a worthy of further consideration which no doubt they will be subject to.

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