New birth certificates issued after consent error

The President of the Family Division, Sir James Munby, has ordered that new birth certificates be produced for twins born following fertility treatment, after the originals failed to include the father because consent forms were missing. 

The couple, who are not married, received treatment together at CARE Nottingham using donor sperm, which led to the birth of twins. However, when they went to register the birth of their children, the registrars twice refused to include the intended father on the birth certificates because the couple could not produce the consent forms requested – despite being accompanied on one occasion by a member of staff from the clinic.

Birth registration guidance states the need for 'written notice' of the couple's consent to the male partner becoming a legal father where assisted conception is used, which according to the Registrar General was interpreted to refer to consent forms WP and PP – which in this case were missing.

Following the advice of the registrar, the couple decided to leave the father's details blank pending a declaration of parentage. The father told the court: 'I was devastated. I cannot express how I feel about not being recorded on my children's birth certificates as their father.'

The problems for the couple continued as the legal route to correcting the birth certificates would have resulted in them being annotated to show, in effect, that the children may have been born following assisted conception – something the parents wished to avoid.

'[We] had not intended to tell our children that they were conceived using donor sperm, it is only now that we are faced with this situation with their birth certificates that we feel this choice may have been taken away from us and we may have no option but to tell them,' the father said.

In order to issue new birth certificates, the couple were required to make an application for judicial review, claiming that the registrar's decision was an error of law in light of the decision in Re A. In Re A, Lord Justice Munby said that consent form IC – which the couple in this case had signed before treatment – could meet the statutory requirements without the need for forms WP or PP.

Noting that the guidance had not been updated since the decision in Re A, Lord Justice Munby granted the application, permitting the application even though it was made out of time.

He said: 'Put starkly, the state by its actions has denied these parents the right to decide for themselves, within the privacy of the family, what in their view, as devoted parents, is in the best interests of their children – a matter which, to speak plainly, is no business of the state.'

Lord Justice Munby also gave judgment recently in another group of eight cases concerning consent forms, taking the total so far to 24.