Surrogacy sperm mix-up means intended parents must adopt twins

A UK-based couple who discovered that an overseas fertility clinic had used donor sperm instead of the intended father's must adopt twins born via surrogacy.

The couple – referred to in court as PP and QQ – believed their embryos had been created using donor eggs and PP's sperm before being transferred to a surrogate in Sri Lanka. However, DNA testing after the twins' births revealed neither was biologically related to the children, meaning that a parental order cannot be issued under UK law.

'The applicants are blameless,' said Mr Justice Robert Peel in his judgment. 'Neither of them is biologically related to the children, as a result of the actions of the clinic which used donor sperm rather than the sperm of PP.' He added that it remained unclear whether this resulted from 'an inadvertent error, perhaps as a result of poor internal processes, or was intentionally done'.

PP and QQ are both from Sri Lanka but met and reside in the UK. A previous IVF cycle resulted in the birth of twins who died shortly after delivery, after which QQ was advised not to become pregnant again. A family friend in Sri Lanka subsequently agreed to be their surrogate and embryos were created at Wish Fertility, who confirmed they used donor eggs and PP's sperm.

The error was discovered when DNA testing for the children's British citizenship application revealed that PP was not their biological father. QQ said the result struck the couple 'like a thunderbolt', but they remained determined to protect the children because they were 'meant for us'.

Wish Fertility claimed that the couple consented to using donor sperm alongside PP's sample and that embryologists were unable to determine which sperm had fertilised the embryos. However, Justice Peel noted that the consent form related only to egg donation, and no consent form authorising donor sperm was produced, nor was any concern raised about PP's sperm quality.

The court permitted the couple to withdraw their application for a parental order as section 54 of the Human Fertilisation and Embryology Act 2008 requires that the gametes of at least one intended parent were used to create the embryo. Instead, he granted permission to apply for an adoption order and made a child arrangements order, granting PP and QQ parental responsibility pending adoption.

The judgment contrasts with Re J (see BioNews 1321), where intended parents submitted misleading DNA evidence after discovering that no biological link existed between the intended father and the child. In neither case was the requirement for a biological link met, meaning adoption was the only route to legal parenthood.