Leeds Teaching Nhs Hospital Trust V A Notes

Leeds Teaching NHS Hospital Trust v A [2003] 1 FLR 1091

High Court

Facts

Mr and Mrs A sought reproductive treatment, with Mr A’s sperm mixed with Mrs A’s eggs. Mrs A gave birth to the twins and was their biological father. However, owing to a mistake, Mr B’s sperm were wrongly mixed with Mrs A’s egg, meaning Mr B was their biological father. None of the parties involved consented to this happening. Who was the legal father?

Held Butler Sloss P

• [s.35 Woman married at time of treatmentE+W+S+N.I.

  • (1)If—

    • (a)at the time of the placing in her of the embryo or of the sperm and eggs or of her artificial insemination, W was a party to a marriage, and

    • (b)the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage,

      • then, subject to section 38(2) to (4), the other party to the marriage is to be treated as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or the sperm and eggs or to her artificial insemination]

• 41Persons not to be treated as fatherE+W+S+N.I.

  • (1)Where the sperm of a man who had given such consent as is required by paragraph 5 of Schedule 3 to the 1990 Act (consent to use of gametes for purposes of treatment services or non-medical fertility services)

    • was used for a purpose for which such consent was required, he is not to be treated as the father of the child.]

• Assisted reproduction and fatherhood when parties married

  • Looking superficially at [s.35(1)(b)] , it might appear that Mr A could be the legal father of the twins,

    • since, at the time of the placing in Mrs A of the embryo, Mrs A was a party to the marriage with Mr A and the creation of the embryo carried by her was not brought about with the sperm of Mr A.

  • But this is subject to two provisos.

    • The first is contained in [section 38(2) to (4)] and provides for the common law presumption of legitimacy of a child born to a mother during her marriage.

      • In the present case, that presumption is displaced by the DNA tests which established that Mr B is the biological father of the twins

    • The second proviso, contained in [s.41(1), is the requirement of the husband's consent.

      • It is obvious that [s.35] is not relevant if the sperm given by Mr A was used since he is then the biological father and the twins are the legitimate children of Mr and Mrs A.

        • The question is whether Mr A consented to the insemination of Mrs A by a third person (for the purposes of this argument, ‘a donor’

          • What Mr A consented to was the course of treatment involving his own sperm – not someone else’s

          • Mrs A did not consent to her eggs being mixed with someone else’s sperm either

            • While Mr A may not wish to withdraw his consent and take advantage of s.35 to be the parent

              • This is not a matter of endorsement after the event – merely what he consented to in the first place.

• What is treatment together?

  • There has been a robust interpretation of the concept of ‘in the course of treatment services provided for her and a man together’.

    • A fundamental error resulting in the use of the sperm of another in place of the use of sperm of the man taking part in the treatment must vitiate the whole concept of ‘treatment together’ for the purposes of the 1990 Act. I

      • Mr and Mrs A were therefore not being treated together within the meaning of the subsection

• Should the court make a declaration?

  • In my judgment it is not necessary to meet the rights of Mr and Mrs A

    • Within the domestic family legislation there are remedies which can underpin and protect the position of Mr A with respect to the twins.

      • Those remedies include...

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