What’s the point of parenthood? The agreed parenthood provisions under the HFE Act 2008 and inconsistency with intention

ABSTRACT

Through an analysis of cases where a declaration of non-parentage has been made in the context of flawed consent to the agreed parenthood provisions under the HFE Act 2008, this article illustrates the inconsistencies of the current law relating to intention as the basis for agreed parenthood. I argue that the courts are not always faithful to the underlying policy of recognising intention to attribute legal parenthood, in particular where the putative parents’ relationship has broken down. If intention, expressed through consent to the use of donated gametes and ensuing parenthood, is to provide as much certainty as parentage based upon a genetic link, then administrative flaws in the respect of the legislative formalities should not allow parenthood to be challenged where there is nevertheless evidence of the parties’ intention to become parents. I argue that it is problematic to prioritise certainty of the existing inadequate procedural conditions at the expense of certainty for the child’s identity. Given that parenthood is central to an individual’s identity and consequently has repercussions not only for the individuals concerned, but for wider society too, a much clearer articulation of how intention is enshrined as the basis of parenthood is needed.

KEYWORDS:

• Parenthood
• intention
• non-parentage
• HFE Act 2008
• genealogical justice

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. Bainham (2008). According to the author, birth registration provides an accurate report of the birth of the child and identifies the birth parents (although not necessarily the biological parents).

2. See for example, Re D (a child) [2005] UKHL 33); Re R (IVF: Paternity of Child) [2005] UKHL 33; ARB v IVF Hammersmith Ltd [2017] EWHC 2438 (QB).

3. Administrative errors in the recording of consent to parenthood have been identified in a string of cases including Re HFEA (Cases A, B,C, D, E, F and G) [2015] EWHC 2602 Fam, and In the Matter of the Human Fertilisation and Embryology Act 2008 (Cases AD, AE, AF, AG and AH) (No 2) [2017] EWHC 1782 (Fam). It is interesting to note that the Department of Health’s Post-Legislative Assessment of the HFE Act 2008 states: ‘Since implementation there have been no significant legal issues or actions with regard to the amended 1990 Act or the parenthood provisions contained in the 2008 Act, as far as the Government is aware.’ This is clearly not an accurate description of the situation today. Memorandum to the Health Committee, Cm 8823, March 2014.

4. Further cases include: Re HFEA (case V) [2016] EWHC 2356 (Fam) and Re HFE Act 2008 (cases P,Q,R,S,T, U)(no.2) [2017] EWHC 2532 (Fam).

5. I acknowledge of course, that access to ART is possible by a woman on her own, so a child may never have the option of having a second parent. However, that context is different to the one discussed in the above cases, which involves the negation of the legal status of a person (parent) who has been – and may continue to be – actively involved in the life of the child, and who on the evidence believed themselves to be acquiring parental status.

6. This analogy is taken from the historical context of blood ties and lineage, where ‘[i]t was the relation of the individual to his lineage (relatives by blood or marriage, dead, living or yet to be born) which provided a man of the upper classes in a traditional society with his identity, without which he was a mere atom floating in a void of social space.’ Lawrence Stone (1979).

7. See for example, before the Ontario Court of Appeal: AA v BB (2007) ONCA 2; DWH v DJR (2013) ABCA 240; British Columbia, Family Law Act 2013, Part III – Parentage.

8. The Report is available in Dutch: https://www.rijksoverheid.nl/documenten/rapporten/2016/12/07/rapport-van-de-staatsommissie-herijking-ouderschap-kind-en-ouders-in-de-21ste-eeuw.