In the first recent case a mother appealed against a High Court ruling that her former partner was the legal father of her three-year-old daughter. The couple had sought in vitro fertilisation (IVF) treatment using donor sperm. After one unsuccessful attempt the couple separated, but the mother did not inform the clinic. On the next attempt she became pregnant. Her former partner sought a declaration that he was the child’s legal father and wished to establish contact.

The Court of Appeal rejected the man’s claim, holding that the wording of the HFEA clearly meant that the partner of a woman receiving treatment with donor sperm will be the father of any resulting child only if the couple are receiving that treatment together, at the time that the sperm or embryo is placed in the woman.

Although the couple had sought treatment together, by the time of the second, successful IVF cycle they were together no longer. The child was therefore legally fatherless as the HFEA specifically excludes the possibility that the sperm donor can be considered the child’s father.

Then came the case of the mixed-race twins born to Mr and Mrs A, a white couple. The biological father was Mr B, a black man. Both couples had been receiving IVF treatment at the same clinic. Mrs A’s eggs were accidentally fertilised using Mr B’s sperm. Each man wished to be declared the legal father of the twins.

Dame Elizabeth Butler-Sloss, the President of the Family Division, held that Mr B was the twins’ legal father. The husband of a mother whose child is born after treatment with another man’s sperm is the child’s legal father, providing the husband consented to the treatment. Although Mr A had consented to his wife’s treatment, he had not consented to the use of another man’s sperm. The judge viewed this as a fundamental mistake that “went to the root of the whole process and has had irreparable consequences”.

Mr A was similarly unsuccessful in his attempt to use the “partner” provision. The judge considered that this provision was not intended to apply to husbands. Mr and Mrs A could not be said to have been receiving treatment services “together” once the wrong sperm was used. As Mr A was not deemed to be the twins’ father under the HFEA, the common law provided that Mr B, the twins’ biological father, would be their legal father.

Neither of these cases appears to have been anticipated by Parliament when the HFEA was debated, although the outcome of each is consistent with the focus of the Act on the importance of the parties’ consent.

In a third case — that of Diane Blood — the circumstances were specifically catered for by Parliament. But the Government has admitted that the legislation fails to meet the requirements of the Human Rights Act 1998.

Mrs Blood has two sons whose biological father is her deceased husband, Stephen, who died of meningitis in 1995. Under the Act, since Stephen’s sperm was used after his death, he cannot be the boys’ legal father.

Mrs Blood has been fighting to change the law since the birth of her first son, Liam, in 1998. Last month the Department of Health accepted that this provision was incompatible with the rights of children born using posthumous sperm to respect for their private and family life under Article 8 of the European Convention on Human Rights. The law is likely to be changed either by a Private Member’s Bill awaiting a second reading or by a Government Bill.

As well as these cases on parentage, there have been a number of other unanticipated problems that require resolution. The Human Fertilisation and Embryology Authority is appealing against a High Court judgment overruling its decision to allow tissue-typing in conjunction with pre-implantation genetic diagnosis. The High Court’s decision prevents a family whose child suffers from beta thalassaemia from using this technique to produce a child who would be both healthy and a matched donor for their existing child.

A decision is also awaited from the House of Lords on whether cloning is prohibited by the HFEA. Challenges under the Human Rights Act by children born of artificial reproductive techniques to the provisions preventing disclosure of information of the donor’s identity are also ongoing.

It is not unusual for there to be a number of judicial decisions to clarify the provisions of a new statute as it beds in. But the HFEA is no longer new, and the number of problems it raises seems to be increasing, as are the number of challenges to its provisions under the Human Rights Act. When the law regulates fundamental rights in an area of technology that is changing quickly, there may be a case for regular review of the statutory provisions by Parliament. The French have incorporated a “sunset clause” into their bioethics law, which must be reviewed and renewed every five years. Perhaps it is time for a similar approach in the UK.

The author is a lecturer at the Centre of Medical Law and Ethics, King’s College London.

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