Declaration of non-parentage: a cautionary tale for couples seeking fertility treatment abroad?

A recent decision by the Family Court in England has served as an important reminder of the importance of seeking legal advice before embarking on your journey to parenthood using fertility treatment.

Mr J raised an action for a declarator of non-parentage in respect of twin children, A and B who are both aged 16 years old. In 2007, Mr J and the children’s mother (M) conceived twins through IVF using a sperm donor which took place at a clinic in Cyprus. The parties were not married at the time of conception however they did go on to marry in April 2008 before the children were born in July 2008. After the birth, Mr J was registered as the children’s father on the birth certificates.

In October 2009, the parties’ separated and later divorced in 2011. The children had no relationship with Mr J after the separation and the only connection was through Mr J continuing to pay child maintenance in respect of the children. However, in 2021, Mr J challenged his obligations through the child maintenance service and it was held that he required to seek a declarator of non-parentage if he wished to stop paying child maintenance. Accordingly, he raised proceedings.

M opposed the application on the basis that Mr J had been fully involved in the fertility treatment process and wished to become the father of A and B. During the Court process, the children were able to express a view through their Guardian; they wished Mr J to remain their legal father.

The Court made a determination in the application after careful consideration of four key issues:

1. The children’s views.
2. Whether there is evidence that the mere fact of considering the application would be likely to be harmful to the children.
3. Whether the application, if granted, would be likely to have such deleterious consequences for the children meaning it shouldn’t be determined.
4. How determination of the application fits with the Article 8 ECHR rights of the individual members of the family.

It was recognised and accepted that if the declarator were to be granted then the children would be negatively impacted insofar as the financial contributions from Mr J would cease. However, the Court emphasised that this was merely one factor.

In making its decision, the Court highlighted that there was a clear path paved by statute to Mr J’s declarator of non-parentage. The Human Fertilisation and Embryology Act 1990 provides that if the woman is not married at the time of conception via IVF and if no man is treated as the father of the child as a result of her not being married but (a) the embryo or the sperm and eggs were placed in the woman, or she was artificially inseminated, in the course of treatment services provided for her and a man together by a person to whom a licence applies and (b) the creation of the embryo carried by her was not brought about with the sperm of that man then that man shall be treated as the father of the child. In this case, the parties were not married at the time of the children’s conception, the conception did not take place in a clinic licensed in the UK and the conception was achieved using a sperm donor. The Court further stated that the fact that Mr J was registered on the birth certificate did not itself confer legal parentage on him. Accordingly, the declarator of non-parentage was granted.

This decision highlights the importance of ensuring that legal advice is sought before undertaking treatment abroad. Many couples who experience struggles to conceive naturally opt to travel further afield to have fertility treatment due to the lengthy waiting lists and the costs in the UK. However, it is very important to be aware of the potential implications of having treatment abroad, particularly on legal parentage and the now very real possibility that this could be challenged in order to avoid child maintenance obligations.