Birth certificate “ambiguity”

Sir James Munby has granted a “declaration of non-parentage” in a case involving the child of a former same-sex married couple.

The two women, X and Y, both wanted to have children using the same sperm donor. X had her child after the Human Fertilisation and Embryology Act 2008 came into force, which meant Y was included on the child’s birth certificate. The couple have since split up, but relations remain good and X and Y’s children regard each other as half-siblings, effectively have two homes and spend most of their time together being cared for by X or Y.

However, the couple sought a declaration from the court that Y was not the parent of X’s child. The reason was that the couple wanted to have equivalence of legal status for the two children, and for neither to be the parent of, or have parental responsibility for, the other’s biological child. The issue did not arise for Y’s child, who was born before the 2008 Act took effect.

Granting the declaration, in In the Matter of the Human Fertilisation and Embryology Act 2008 (Case L) [2016] EWHC 2266 (Fam), Sir James said retaining Y’s name on the birth certificate could lead to “ambiguity and confusion” in the future.

“In relation to parentage, as in other matters, a child’s interests are best served by the ascertainment of the truth, whatever that truth may be,” he said. “So a child needs to know, where parentage is in issue, whether P is or is not a parent… If the conferring of the legal status of a parent is a serious matter, then divesting a person of that status is at least as serious.”

A complication arose from the discovery that, although Y was included on the birth certificate, there was no record of X and Y having signed the legal forms required to make Y a parent at the fertility clinic. In recognition of this, the clinic paid the women’s legal fees.