Woman’s landmark legal action for ‘non-parentage’ against former same-sex partner dismissed

The woman, who gave birth to twin boys following artificial insemination, was seeking declarator of “non-parentage”, claiming that she never agreed to her former partner being a second parent.

However, a sheriff ruled that both parties had complied with the “female parenthood conditions” set out in the Human Fertilisation and Embryology Act 2008 and consented to her being treated as a parent of the children.

Second woman as a parent

Sheriff Wendy Sheehan heard that the pursuer “L”, the birth mother, brought the case after Nuffield Hospital in Glasgow, the private hospital which helped her conceive, lost forms showing her former partner “B”, the defender, had accepted parental responsibility.

Edinburgh Sheriff Court was told that the parties were in “long-term and committed” relationship for seven years, and although they were not married or in a civil partnership, they shared a home, a car and holidays together and family and friends regarded them as a “couple”.

The women decided they wanted to start a family together in 2007, a year into their relationship, and the pursuer identified a friend as a potential sperm donor.

The pursuer tried twice to conceive using donor sperm without medical assistance, but this was unsuccessful.

The twins were eventually conceived through artificial insemination in 2009 after three failed attempts and were born by caesarean section in early 2010.

By early 2014 the parties’ relationship had badly broken down but they continued to cohabit.

Later that year Nuffield Hospital wrote to the couple notifying them that it has lost the “PP” form signed by the defender declaring parentage, but during a meeting with hospital staff both had reiterated that it was their intention that the defender would be the legal parent of the children.

Declarator of non-parentage

However, the pursuer later raised the present action claiming that she had “no recollection” of any such discussion and that she never received or completed a form “WP”.

The pursuer’s evidence was that she had not been in a stable relationship with her partner when they had the twins that the defender did not want the responsibility of parenting the boys at the time of their birth.

She also claimed that she felt “pressured” to register the children’s births jointly recording the defender as a parent, but the sheriff described her evidence as “nonsensical”.

The defender was present at the twins’ birth and was at the hospital every day for two weeks afterwards while they were in the special baby care unit.

Her evidence was that the couple were “very happy, in love and excited” about the twins’ birth and other witnesses spoke to the parties being happy and excited when registering the birth.

Action dismissed

The sheriff dismissed the pursuer’s request for declarator of non-parentage after ruling that the requirements of sections 43 and 44 of the Human Fertilisation and Embryology Act 2008 had been complied with.

In a written judgment Sheriff Sheehan said: “I did not accept the pursuer’s evidence that the relationship was not a committed one and that it was only a ‘partnership of sorts’.

“The pursuer’s evidence disclosed a level of disappointment and bitterness stemming from the difficulties between the parties in the latter part of their relationship and the breakdown of their sexual relationship.

“It was evident that she gave her evidence with an element of revisionism as to the nature of the parties’ relationship which was not borne out by the other evidence in this case.

“I found the pursuer’s evidence, which was given in an attempt to persuade the court that the parties’ relationship was anything other than a long-term and committed one, slightly baffling.

“This contrasts with the defender’s careful and meticulous evidence both in her affidavit and in her parole evidence.”

She added: “The evidence very clearly pointed towards the parties having discussed having a child together and to them jointly attending the Nuffield at the outset of that treatment as a couple.

“The parties were delighted when the pursuer became pregnant. Their relationship was a happy one at that point in time. They shared their excitement with family and friends.

“This was spoken to by a number of the defender’s witnesses. The pursuer and her family glossed over this in their evidence.

“I have concluded, on a careful consideration of the evidence, that the pursuer and the defender did, at the appropriate time, and in the proper form, complete and sign both a form WP and a form PP.

“Those forms, I find, have been lost or misplaced by the Nuffield. It follows that the pursuer is not entitled to the declarator of non-parentage which she seeks.”