This week's BioNews reports on the recent High Court ruling that the biological father in the case of the IVF embryo mix-up is also the legal father. This might sound like common sense until the facts of the case are made clear.
Mr and Mrs A have two children, twin babies, who were conceived after Mrs A's eggs were mistakenly mixed with the sperm of another man, Mr B. Mr B has never met the twins in question; he has no desire to be their father, to have custody of them or parental responsibility for them. Mr A, meanwhile, has been father to the twins since their birth; he wants to carry on being their father, to have custody of them and parental responsibility for them. He is also, as the court confirmed, the person whom the twins regard as their father. Yet, according to the High Court, he is not their legal father.
Why was this judgement made? Reading the court judgement, it is difficult to get inside the head of Dame Elizabeth Butler-Sloss, the judge presiding over the case. But on the legal points, Mr A was unable to establish himself as the legal father of the twins under the Human Fertilisation and Embryology Act because he did not consent to the use of another man's sperm in his wife's treatment. According to the court, because Mr A could not be regarded as the legal father, Mr B should be regarded as such, even though, as Dame Elizabeth Butler-Sloss said, it is 'only the use of his sperm that connects him with the twins'.
Does it matter that Mr B is the legal father? Since Mr B does not seek any kind of fatherly role in the twins' lives, what are the real implications of the court's finding him to be their legal father? The main practical effect of the judgement is that Mr and Mrs A will have to adopt their own children. This is, at the very least, a peculiar situation for parents to find themselves in. Apart from this serious issue, the judgement will have few practical implications. But its declaratory impact should not be underestimated. If someone is a legal father, that sounds important. And in this case, where legal paternity is placed next to biological paternity, the genetic connection seems to be regarded as more important than the social one. Indeed, Dame Elizabeth stated that one advantage of her judgement is that the twins 'retain the great advantage of preserving the reality of their paternal identity'.
But what is the reality of their paternal identity? The twins' biological father is Mr B - this much is indisputable. But declaring him to be the legal father too begins to make him look like the 'real father'. But Mr A intended to be their father. He was there at conception (even though he wasn't responsible for it), during the pregnancy, at the birth and, more importantly, he has been their father every day since their birth and intends to be their father until the day he dies. Shouldn't that be regarded as the 'reality of their paternal identity'?