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In the second part of his surrogacy and HFEA update, Andrew Powell of 4PB analyses recent important judgments from Scotland and Northern Ireland.

Andrew Powell barrister, 4PB

For Part 1 of this article, covering judgments in the jurisdiction of England and Wales, please click here.

SB v University of Aberdeen [2020] CSIH 62

A Scottish decision in which the Inner House of the Court of Session granted a widow's petition to allow her to use her late husband's sperm for IVF treatment. The primary question was whether or not his will, together with forms signed consenting to the use of his sperm in inter alia intra uterine insemination (IUI), constituted the requisite consent for use in IVF under HFEA 1990, Sch. 3.

The parties (JB and SB) met and married. When JB's serious illness recurred, they agreed to commence fertility treatment, and were referred to a consultant by their GP. On medical advice JB had stored his sperm at the onset of his disease ten years previously and prior to meeting SB. Unfortunately however, JB's health deteriorated before treatment could begin.

It was discovered the day before he died, by which time he was unconscious, that the forms he had previously completed provided his consent only to the use of his sperm in inter alia IUI, and not IVF (which involves creation and storage of embryos).

Nonetheless, JB had discussed his wishes with his father, and a clause had been inserted into his will headed "Human Fertilisation and Embryology" and which directed his executors to ensure that "my donation of sperm will be for as long as possible and for as long as she may wish, available to [SB]."

SB petitioned the court asking it to exercise its powers under the nobile officium, and grant certain orders to allow her to use her late husband's stored sperm in IVF treatment. The issue before the court therefore was whether or not the will, either alone or in combination with the forms JB had signed giving consent to IUI, constituted consent by JB for the use of his sperm in IVF, as required in HFEA 1990, Sch. 3. Further, SB sought the storage of JB's gametes to be extended beyond the normal statutory period of ten years. The court concluded as follows (20-23):

"20. We proceed on the basis that the requirements of an effective consent to use of the deceased's gametes for IVF treatment are that:

(a) It must be in writing;

(b) It must be signed by the deceased;

(c) It must specify the purpose of use, and be clear that it encompasses consent to the creation of any embryo in vitro ;

(d) The individual must have been given a suitable opportunity to receive proper counselling about the implications of taking the proposed steps, and have been provided with such relevant information as is proper; and of the consequences in respect of the possibility of variation or withdrawal of consent as specified in schedule 4, paragraph 4 ; and

(e) It must not have been withdrawn.

In our view, the terms of the deceased's will constitute sufficient consent to meet these requirements. It is in writing, it is signed and it has not been withdrawn. The remaining two conditions for effective consent relate to the opportunity for counselling and whether the terms of the clause are sufficiently clear to provide consent for the specific form of treatment that is involved in IVF.

21. As to the first of these, it is clear that the deceased was, at the time of his first visit to the clinic at the start of his illness, provided with suitable and appropriate opportunities for counselling in respect of the steps which he was then undertaking. What is "a suitable opportunity to receive proper counselling", or provision of "such relevant information as is proper" is, as is accepted by the HFEA, situation specific. The context in which the deceased and the petitioner consulted their GP and were referred to the consultant and thus to the fertility clinic, was one in which they were investigating the possibility of having a child in the face of JB's impending death. It seems clear to us, taking together the affidavits of the consultant and the petitioner, that the terms of paragraph 3 of schedule 6 were adequately met before the deceased signed his will about two months after being seen by the GP and consultant. In addition, during their consultation with the consultant, the couple completed and signed a fertility clinic "Welfare of the Child" consent form. Under the heading "we have considered the following issues", they ticked a box stating "Our possible need for and the availability of independent counselling". The form was signed by both of them. The referral letter from the consultant to the clinic stated "The couple seem to have considered the difficult road ahead". The Authority accepts that treatment by IVF appears to have been in the contemplation of JB, and the affidavit of SB makes this clear. We consider therefore that there was a discussion, albeit limited, about IVF which was in the circumstances sufficient to meet the statutory requirements.

22. The remaining issue relates to the construction of the clause in the will. It is axiomatic that we should start by examining the plain meaning of the words in the context in which they occur. We regard the following features as important. First, it is a testamentary document in which JB was not only making disposition of his estate but, by this clause, expressing his wish for the future use of his stored gametes. Second, he and his wife had sought and been referred for treatment to en able them to have a child. Third, although it is expressed as a direction to his executors, in reality it is an expression of his wishes. For present purposes, we are not concerned with whether the clause could be given testamentary effect. The only question is whether it can be construed as granting the necessary consent. In our view there is no doubt that it can. It is the sort of provision that would only sensibly be made by a man contemplating his death in the near future, and seeking to make his wishes clear. The heading refers not merely to fertility but to "embryology". The clause itself is expressed unconditionally and in the widest terms. It specifies that the material be "available" to SB, in other words available for her unqualified use, thus covering the prospect of her treatment, given the known context, and meeting the terms of paragraphs 6(2) and 2(1)(b) of the schedule. All these factors point unerringly toward JB having given consent to IVF treatment. Consent to use of the gametes for the purpose of IVF must impliedly include consent for the storage of any embryos thereby created, thus meeting also the terms of paragraph 8 of the schedule .

23. Where it is desired to store gametes for a period in excess of ten years for the provision of treatment services there must be written consent of the donor and a medical opinion to the effect that that person was, or may have been likely to become, prematurely infertile ( Human Fertilisation and Embryology (Statutory Storage Period for Embryos and Gametes) Regulations 2009, regulation 4(3)(a) and 4(3)(b) ; and In re Warren [2015] Fam. 1). The clause in the deceased's will, specifying that the material be available to the petitioner for "as long as possible", together with the opinion of the treating oncologist as to the deceased's state of fertility, clearly meet these requirements."

The orders sought by SB were granted therefore, with the precise wording by consent and agreement of the parties (see 24).

Ms A and Ms R & Ors [2020] NIFam 6 A same-sex couple applied for a declaration of parentage in order to ensure that both of their names appear on the child's birth certificate. The court found itself unable to make a declaration of parentage, concluding that both s.42 and s.43 HFEA 2008 did not apply in the instant case. The court held it was also unable to make a declaration of parentage on the basis of social and psychological parentage; could not read s.42 to include couples in an "enduring relationship"; and refused to make a declaration of incompatibility with the ECHR Articles 8 and 14.

The decision involved a lesbian couple, R and A. They wished to co-parent a child, and sought a donor, P, who provided sperm with which in 2014 R conceived the child in question (C), who was born in the same year. A and R were not married or in a civil partnership at the time. R was listed on C's birth certificate as C's mother and only parent. P's name was not on the birth certificate, and crucially nor was A's.

The court had two key applications before it:

1.P's application for contact with C. The court noted that the role P was to play in C's life had not been definitively agreed between the parties. P contended he was to play some sort of part in C's life, including having at least one visit soon after C was born. R and A objected to this which in turn led to P making an application for contact. The court noted that:

"3. Regrettably there was never a written or agreed formulation of what role Mr P would play in C's life e.g. when he would see C, how often he would see C, how he would be introduced to him, how his children would be introduced to him or how he would be known to him. It is appalling that the planning between the adults for something so important and long lasting was so inadequate. People put more care into arranging a holiday than these three adults did for C. To the extent that there were discussions the outcome was incomplete and incoherent."

R and A challenged P's right to seek contact on the basis that he is not C's father in any way which should be recognised by the court. (Note that despite seeking contact, P did not seek to have his name added to C's birth certificate.)

2.A's application for a declaration of parentage under Article 31B of the Matrimonial and Family Proceedings (NI) Order 1989 ("the 1989 Order") naming her as C's second parent, and enabling her to be added to C's birth certificate. R and A subsequently entered a civil partnership, and wished for A to be added to C's birth certificate as a second mother. They argued P was not the natural father of C, and they were C's only natural parents. A sought to argue that a refusal to add A's name to C's birth certificate would be incompatible with her rights, and those of C and R, to family life pursuant to Article 8, and Article 14 insofar as she would be a victim of discrimination based on her status of being other than married or civil partnered. A, supported by R, argued that C was born when they were in an "enduring relationship" which should be officially recognised and respected as being equivalent to a civil partnership or marriage.

Further, A argued that she was a parent to C in the social and psychological sense recognised by Lady Hale in Re G [2006] UKHL 43, and the court should in the alternative make a finding of its own accord that a declaration of parentage is appropriate.

A sought that s.42 of the HFEA 2008 was to be read so as to apply to A even if she was not married to R or in a civil partnership because she was in an "enduring relationship". Alternatively, A sought a finding that s.42 was incompatible with the ECHR Articles 8 and 14, and also a finding that s.43 was incompatible because it required A to have received treatment services through a licensed clinic.

A argued it was not sufficient for her to benefit from any of the orders which might be made under the Children (NI) Order 1995 ("the 1995 Order), such as an order for parental responsibility or a joint residence order with R. Whilst these orders are of some value, A argued that they do not carry the permanence of registration as a legal parent on the birth certificate and are vulnerable to challenge as circumstances change. Nor would it be sufficient for her to become an adoptive parent. A argued she could only have her position recognised adequately if she was declared to be a parent.

The Department of Finance, the UK Secretary of State for Health and the Attorney General resisted these submissions, as did P.

The Law The court considered the HFEA 2008 in detail, including the provisions in ss.42 and 43 (10-22), and the provisions of the 1989 Order (4-5).

It concluded that if A fell within either s.42 or s.43 of the HFEA 2008 and was therefore "treated as a parent of the child" she would be entitled to a declaration of parentage under Article 31B of the Matrimonial and Family Proceedings (NI) Order 1989 ("the 1989 Order"), and in turn able to be registered on C's birth certificate as his second parent.

Sections 42 and 43 of HFEA 2008As A was not R's civil partner until C was born, s.42 did not apply (24).

Further, s. 43 did not apply either because R did not receive treatment from a licenced services provider, and the specified female parenthood conditions in s.43 had not been complied with in any way. This included the fact that A and R had not signed consent forms with a declaration acknowledging that they had received information about different options available, had been offered counselling, understood the implications of their consent, and was aware that the consent could be changed or withdrawn up to a certain point. The court noted that all of this was absent in this case and that "[t]hese consents are not incidental matters, they are fundamental to the process" (24).

ConclusionsThe court noted that:

"29. The 2008 legislation recognises married couples, couples in civil partnerships and unmarried couples in Sections 42 and 43 subject to certain conditions. None of those conditions is one which Ms A could not have complied with. Had she and Ms R entered a civil partnership earlier they would have come within Section 42. Alternatively they could have gone through a licensed clinic and met the demands of section 43. They chose not to do so and now seek to avoid the consequences of their deliberate decisions."

The court declined to read s.42 to include people in an "enduring relationship" as to do so would "open the door wider [] only ends the certainty which the legislation has sought to achieve in this complex and difficult area." (31)

In respect of A's submission that the court should make a declaration of legal parentage for the purpose of Article 31B of the 1989 Order on the basis of social and psychological parentage, the court followed Jackson J in Re G (Unregulated Artificial Conception) [2014] EWFC 1, where the court had concluded the existence or non-existence of psychological parenthood was not an apt subject for a declaration parenthood. In short, the court considered A was "asking much too much":

"32. Providing social or psychological parenting for a child is of enormous importance and value to a child as Lady Hale recognised. However, in my judgment, it is really quite different from what Article 31B contemplates and requires. At different times in a child's life one adult may leave the scene and another one arrive on it. That new adult might become central to the child's well-being and positive development on a long term basis. Wonderful as that is for the child it is not a basis for adding his or her name to the birth certificate."

The court ultimately concluded very strongly that:

"33. Ms A is not and cannot be the natural parent of C. Had she and Ms R taken one of the routes open to them they could have become the recognised legal parents. By failing to do so they have lost that opportunity, at least so far as Ms A is concerned."

In respect of the arguments raised by A regarding compatibility with the ECHR, the court held that whilst Article 8 is engaged and to an extent has been interfered with, the interference is "extremely limited" and justified because:i.As noted above, A had the opportunity to become a legal parent through the routes provided for by s.42 and 43 of the HFEA 2008: "It is not the law which denies second parentage to Ms A. On the contrary it is her failure to take any of the steps open to her by law." (34)

ii.While the interference is necessary to introduce certainty into the complex area of parental relationships, it is limited by the variety and combination of alternative orders which would be able to cement A's place in C's life (i.e. orders for parental responsibility and shared residence which, in the circumstances of this case, are likely to be long lasting in their effect as P was not seeking anything more than some form of contact) (34).

Further, in respect to the submissions that she had been discriminated against contrary to Article 14, the court found against A as the provisions in ss.42 and 43 allowed for recognition of a second parent of a woman who is in a marriage or civil partnership (s.42), or outside of a marriage or civil partnership (s.43). No comparator was found.

A declaration of parentage pursuant to Article 31B of the 1989 Order was declined. No declaration of incompatibility with Articles 8 and 14 of the ECHR were made either.

16/12/20

Here is the original post:
Surrogacy and HFEA Update: December 2020 (Part 2) - Family Law Week