Leeds Teaching Hospitals NHS Trust v A & Ors [2003] EWHC 259 (QB) (26 February 2003)

Leeds Teaching Hospitals NHS Trust v A & Ors [2003] EWHC 259 (QB) (26 February 2003)

Sections 28(2) and (3) of the Human Fertilisation and Embryology Act 1990 do not apply where the husband did not consent to the use of another man's sperm and the embryo was created as a result of a fundamental mistake contrary to the written consents. Therefore, Mr A is not the legal father of the twins; Mr B, as the biological father, is the legal father. The Human Rights Act 1998 and Article 8 ECHR do not require a different result, as domestic family law remedies (such as residence orders or adoption) are available to protect the welfare and rights of the children and Mr and Mrs A.

Citation
[2003] EWHC 259 (QB)
Parties
Claimant: The Leeds Teaching Hospitals NHS Trust; Defendant: Mr A; Defendant: Mrs A; Defendant (by Litigation Friend, the Official Solicitor): YA; Defendant (by Litigation Friend, the Official Solicitor): ZA; Defendant: The Human Fertilisation and Embryology Authority; Defendant: Mr B; Defendant: Mrs B; Intervenor: Department for Work and Pensions and the Department of Health (Intervenor); Advocate to the Court: Advocate to the Court (Attorney General)
Jurisdiction
England and Wales
Judgment Date
26 February 2003
Procedural Posture
Declaratory Proceedings (parentage, Family Law) / Judgment After Full Hearing
Outcome
Declaration that Mr A is not the legal father refused; no declaration of incompatibility made; application of Mr B for declaration of parentage adjourned.
Legal Topics
Legal Parentage, Assisted Reproduction, Consent in Medical Procedures, Human Fertilisation and Embryology Act 1990, Children Act 1989, Human Rights Act 1998, Article 8 ECHR
Family Law Human Rights Law Medical Law Legal Parentage Assisted Reproduction Consent in Medical Procedures Human Fertilisation and Embryology Act 1990 Children Act 1989 +2 more

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Parties

The Leeds Teaching Hospitals NHS Trust

Claimant

Mr A

Defendant

Mrs A

Defendant

YA

Defendant (by Litigation Friend, the Official Solicitor)

ZA

Defendant (by Litigation Friend, the Official Solicitor)

The Human Fertilisation and Embryology Authority

Defendant

Mr B

Defendant

Mrs B

Defendant

Department for Work and Pensions and the Department of Health (Intervenor)

Intervenor

Advocate to the Court (Attorney General)

Advocate to the Court

Procedural Posture

Declaratory Proceedings (parentage, Family Law) / Judgment After Full Hearing

Legal Issues

  1. 1 Whether Mr A is to be treated as the legal father of twins born as a result of a mistake in IVF treatment under the Human Fertilisation and Embryology Act 1990
  2. 2 Whether sections 28(2) or 28(3) of the 1990 Act apply to confer legal parentage on Mr A
  3. 3 Whether the Human Rights Act 1998 and Article 8 ECHR require a different result or render the 1990 Act incompatible with Convention rights

Ratio Decidendi

Sections 28(2) and (3) of the Human Fertilisation and Embryology Act 1990 do not apply where the husband did not consent to the use of another man's sperm and the embryo was created as a result of a fundamental mistake contrary to the written consents. Therefore, Mr A is not the legal father of the twins; Mr B, as the biological father, is the legal father. The Human Rights Act 1998 and Article 8 ECHR do not require a different result, as domestic family law remedies (such as residence orders or adoption) are available to protect the welfare and rights of the children and Mr and Mrs A.

Court Disposition

Declaration that Mr A is not the legal father refused; no declaration of incompatibility made; application of Mr B for declaration of parentage adjourned.

Orders

  • Application for declaration that Mr A is the legal father refused.
  • No declaration of incompatibility under section 4 Human Rights Act 1998.