The Court of Appeal of Northern Ireland has upheld a High Court decision refusing to grant a declaration of legal parentage to the non-biological mother of a child conceived through a private sperm donation arrangement.
Delivering judgment, Lady Chief Justice Siobhan Keegan held that the statutory scheme under the Human Fertilisation and Embryology Act 2008 (HFEA) admits of no substantive exceptions. She concluded that, absent compliance with the gateway provisions in sections 42 and 43 of the HFEA, granting a declaration of parentage would be "manifestly contrary to public policy" because it would undermine the statutory framework.
The appellant and her wife, who married in 2021, had been in a long-term relationship before deciding to start a family. Unable to access publicly funded IVF treatment through the NHS because they were a same-sex couple, and unable to afford treatment at a licensed fertility clinic, they proceeded with a private sperm donation arrangement. Their child was born in 2019.
As the couple were neither married nor in a civil partnership at the time of conception, and the conception did not occur through treatment at a licensed clinic, the statutory conditions for automatic recognition of the appellant as the child's legal parent were not satisfied.
Following the child's birth, the sperm donor sought parental responsibility, recognition on the birth certificate and contact with the child, although those proceedings were later discontinued. The appellant subsequently applied for a declaration of parentage under the Matrimonial and Family Proceedings (Northern Ireland) Order 1989. The High Court refused the application, relying on the Court of Appeal's earlier decision in A v O & J [2022] NICA 3, finding that such relief would be contrary to public policy.
On appeal, the appellant argued that the prohibition on same-sex marriage at the time of conception amounted to unlawful discrimination. She submitted that, had marriage been available, she would have qualified as a legal parent under section 42 of the HFEA and should not now be denied recognition. She also sought to distinguish the facts of A v O & J.
The Court of Appeal accepted that same-sex couples were unjustifiably prevented from marrying at the relevant time. However, it observed that civil partnership remained available and would have enabled the appellant to satisfy the statutory requirements. The Court further noted that, had conception taken place through treatment at a licensed fertility clinic, the provisions of sections 43 and 44 of the HFEA could also have applied.
Lady Chief Justice Keegan emphasised that the HFEA establishes a carefully constructed and comprehensive statutory code governing assisted reproduction and legal parentage. The legislation is designed to promote certainty, clarity and consistency, leaving no scope for judicially created exceptions where its requirements have not been met.
The Court distinguished cases in which declarations of parentage had been granted following administrative failures by licensed clinics, observing that those decisions involved errors within the statutory framework rather than circumstances falling wholly outside it.
The Court also referred to the decision of the European Court of Human Rights in X v Italy, noting that recognition on a birth certificate is not the only means by which family relationships may be legally recognised, given that adoption remained available as an alternative route to legal parenthood. Accordingly, there was no breach of Article 8 of the European Convention on Human Rights.
Finding no error in the High Court's reasoning, the Court held that granting the declaration sought would effectively circumvent the clear provisions of the HFEA and would therefore be contrary to public policy.
The appeal was dismissed.
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