A British man has been given leave to appeal to the House of Lords against a ruling made last year, which denied him paternity of a child born to his former partner after IVF treatment. He can now attempt once again to become legally recognised as the child's father.
The couple had started IVF treatment together, using donated sperm because the man was infertile, but had separated after initial attempts at IVF were unsuccessful. The mother later continued the treatment and gave birth to a girl in February 2000. The man applied to the courts for parental responsibility and contact with the child, on the basis that he was her legal father. The High Court, although refusing to grant a parental responsibility order, did grant him a declaration of paternity. It found that because the clinic did not know the couple had separated, and the treatment had begun following consent from them both, section 28(3) of the Human Fertilisation and Embryology (HFE) Act 1990 applied. This says that when unmarried couples receive licensed fertility treatment together, the male partner will be legally recognised as the father of any child born.
In February 2003, the UK Court of Appeal was asked to reconsider this ruling, and the mother succeeded in her appeal against the previous ruling that her former partner was the child's legal father. The court said that the time at which to consider whether a couple had received treatment together, for the purposes of section 28(3), was when the embryo was placed in the woman. This, it said, was the 'natural and ordinary meaning of the statutory language'. There was clear evidence, the judges said, that the man and woman were no longer being provided with treatment services together at the relevant time'.
Although the House of Lords has agreed to hear the man's appeal, no date has yet been set.