In Re E [2019] EWHC 648 (Fam), the High Court has considered the effect of an “internal consent form” in the context of a same sex couple using donor sperm to conceive a child.

Following audits that were ordered in respect of all clinics offering IVF treatment, it emerged that in respect of many cases where donor sperm was used clinics had not ensured the consent forms mandated by the Human Fertilisation and Embryology Authority were signed. The legal consequence was that mother’s partner was not legally a parent.

This led to a line of cases considering different issues arising. In an early case, Re A [2015] EHHC 2602 (Fam), Munby P held that “internal consent forms”, which had often been signed, were sufficient to satisfy the statutory requirements for parentage for the partner, even if the HFEA mandated consent forms were not signed.

In Re E, a child was born following the use of donor sperm by a same sex couple. The intention of the mother and female partner was for both of them to be parents. The HFEA mandated forms were not signed but an internal consent form was signed. However this form was signed prior to the Human Fertilisation and Embryology Act 2008 coming into force, and therefore at a time where it was not legally possible to have two female parents where donor sperm was used. The couple had since split and there was not agreement that a declaration of parentage should be made.

Theis J found the internal consent form was effective for the partner to be a parent where the treatment occurred after the HFEA 2008 had come into force, despite it being signed at a time when any such consent could not be given legal effect. The judge found that this was sufficient to fulfil the statutory requirements in the HFEA 2008, and (as submitted by the Secretary of State) to find otherwise would be directly discriminatory.

Leon Glenister acted for the Secretary of State for Health in Re E, instructed by Pratista Gautam of GLD. He has previously acted in Re K [2017] EWHC 50 (Fam), instructed by the Registrar General, which dealt with birth registration where the HFEA mandated consent forms had not been signed.

Samantha Broadfoot QC represented the Secretary of State for Health in Re A (referred to above) and Re G [2016] EWHC 729 (Fam), which concerned rectification of consent forms.

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