A woman has lost her appeals court challenge to having her name removed from her child’s birth certificate after her ex-wife admitted to secretly having sex with a sperm donor.
of An “unprecedented” and “unusual” case At the heart of the case was the question of who were the legal parents of the girl, now six years old.
The child, known as X, was born during an “informal conception arrangement” between two women and a man who met through an online advert, judges were told.
The couple, known as P and Q, were hoping to find a sperm donor to conceive P and first met a man, known as F, in a pub in late 2016.
The women were “impressed with him” and the three agreed to undergo artificial insemination and signed sperm donation contracts.
The court was told how, after two failed artificial attempts, P contacted F for help and the pair had sex. P was “very upset and depressed” at the failed attempt and arranged to meet him at P’s parents’ home whilst they were overseas. She found him “approachable and sympathetic” and they initiated sex, the court was told.
P and F had sex three times at her parents’ house, without Q’s knowledge, and the third time coincided with a third artificial insemination attempt. The judge said it was “impossible to know which artificial insemination method led to the conception.” [the child’s] concept”.
P and Q later divorced and had disagreements over child custody, but P revealed the truth about meeting the donor and earlier this year obtained a court declaration that F was the child’s legal parent.
In his April ruling, Judge Knowles said the case was “a cautionary tale about what deception about how a child was conceived and the unreliability of informal artificial insemination arrangements can mean for children and for same-sex couples. The judge added that “the impact of the couple’s separation was devastating for them and for the designated sperm donor.”
She concluded that on the balance of probabilities, Q did not consent to P and F’s sexual acts, but that the manner in which the child was conceived was “unknown”.
This meant that Q would not be considered a parent under laws that grant parental status to the wife or civil partner of a woman who gives birth through artificial insemination.
Ms Q, who faced the “painful situation” of having her child’s name switched on his or her birth certificate, appealed the decision at a hearing in London this month.
In his ruling on Friday, Justice Jackson, who heard the case with Justices Davis and Arnold, said the challenge should be dismissed.
Q’s lawyers argued that the burden was on P to prove that the child was not conceived as a result of artificial insemination.
The justices said previous decisions had weakened the law “by encouraging those who seek to exclude their wives or former partners from parenthood to raise questions about the conception of the child and by imposing an almost impossible burden on non-genetic parents to prove artificial insemination.”
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P’s counsel submitted that since scientific tests had shown that F was the genetic father and it could not be proved that the artificial insemination law applied, the court had to declare paternity in F’s favour.
Jackson said Q had not demonstrated that the law applied “in the unusual circumstances of this case.”
He added that the “consequences would be severe” for Ms Q and “presumably also for Ms X” and that informal pregnancy arrangements carried “inherent risks”.
He said: “X exists because P and Q wanted it to, and F was merely a means to an end at the time. So, while it may seem odd that her parentage should be determined by how she was conceived, the line has to be drawn somewhere in this area.”
The judge concluded: “It is natural for a person to feel anxious that a later allegation as to the means of conception, whether legitimate or malicious, may disrupt an established relationship.”
He said such situations “can arise at any stage in life” and that “whatever the family’s circumstances, the court will look at the evidence and reach a decision in the usual way.”
He said after a separate welfare hearing, a judge awarded custody of the children to all three adults.
