NI Court of Appeal: Non-birth mother in same-sex couple not entitled to declaration of legal parentage over child

About this case:

• Citation:
  [2026] NICA 32
• Judgment:
  External link
• Court:
  NI Court of Appeal
• Judge:
  Lady Chief Justice Siobhan Keegan

Delivering judgment for the Court of Appeal of Northern Ireland, Lady Chief Justice Siobhan Keegan concluded that the consistent thread of the jurisprudence “is that there must be adherence to the statutory scheme, that there are no substantive exceptions and absent the satisfaction of the gateway provisions in section 42 and 43 HFEA, making a declaration of parentage is manifestly contrary to public policy as it would offend the statutory scheme.”

Ms Quinlivan KC appeared for the Appellant with Ms J Lavery instructed by McKeown & Co Solicitors, Ms O’Grady KC appeared for the Respondent mother with Ms Rice KC instructed by Phoenix Law, Mr McGleenan KC appeared for the Secretary of State for Health with Mr Egan KC instructed by the Crown Solicitor’s Office, P McAteer appeared on behalf of the Department of Finance instructed by the Departmental Solicitor’s Office, and Ms L Murphy KC appeared for the child as a Notice Party with Ms Sloane instructed by the Official Solicitor for Northern Ireland.

Background

The appellant and her wife, a same-sex female couple, married in 2021. 

Prior to their marriage, the couple had been in a cohabiting relationship and decided to take steps to start a family. The couple enquired about IVF through the NHS but were informed they were ineligible for publicly funded IVF treatment due to being in a same-sex relationship.

In circumstances where financial constraints prevented the couple from accessing treatment through a licensed clinic, the couple sought to have a child via private sperm donation, with the appellant’s wife giving birth in 2019.

The treatment was outside of the terms of the Human Fertilisation and Embryology Act 2008 (HFEA) as the couple were not in a civil partnership or married at the time of conception, and as the treatment was not provided by a licensed clinic. Accordingly, the appellant did not automatically acquire legal parenthood of the child.

The sperm donor brought an application seeking parental responsibility, a specific issue order for his name to be recognised on the birth certificate and a contact order. The sperm donor eventually discontinued his application.

The appellant subsequently applied for a declaration of parentage in respect of the child pursuant to Article 31B of the Matrimonial and Family Proceedings (Northern Ireland) Order 1989, which order was refused by the High Court on the basis that such relief would be “manifestly contrary to public policy” within the meaning of Article 34 of the 1989 Order, having regard to A v O & J [2022] NICA 3.

The appellant appealed to the Court of Appeal, contending that it would not be manifestly contrary to public policy to grant a declaration of parentage as at the time the child was conceived in October 2018, the prohibition on same-sex marriage amounted to unlawful discrimination and had marriage been available to the couple at the time, the appellant would have fallen within section 42 of the HFEA and would have been automatically recognised as a second parent.

The appellant also sought to distinguish A v O & J from her claim.

The Court of Appeal

Having set out the applicable legal framework under the HFEA, the Court of Appeal explained that while it accepted that the couple were not permitted to marry at the time of the child’s conception and that this prohibition constituted unjustified discrimination for same-sex couples, the appellant had not been entirely prohibited from acquiring legal parentage under the HFEA as civil partnership was an available option for the couple.

The court further highlighted that had the treatment been provided in a licensed clinic in the UK, this would have brought the couple within the remit of sections 43 and 44 of the HFEA.

While recognising that the policy which made publicly-funded IVF treatment available only to heterosexual couples had since been revised, Lady Chief Justice Keegan explained that it was “evident that it is not in the nature of the HFEA to be flexible and that it does not provide for exceptions in circumstances falling outside its framework. Instead, the carefully devised nature of the statutory scheme illustrates that there is no room for exceptions outside its framework.”

In that regard, the Lady Chief Justice reasoned that “in the context of the HFEA, public policy must promote certainty, clarity and consistency in relation to legal parentage” and that this was the crux of the argument supporting the findings of the trial judge and what authorities such as A v O & J held.

Noting that only where there have been administrative failures, such as in relation to proper record-keeping, have courts been willing to grant a declaration of parentage in favour of the non-birth parent, the Court of Appeal found that this issue did not arise on the facts in circumstances where treatment did not take placed in a licensed premises.

The court also pointed out that it had been acknowledged by the European Court of Human Rights in X v Italy (Application No. 42247/23) that recognition of the appellant on the birth certificate was not the only route through which the child’s identity could be recognised where the alternative legal route to legal parentage of adoption existed, and as such, there was no violation of Article 8 of the European Convention on Human Rights.

Having regard to the authorities, the Lady Chief Justice concluded: “The consistent thread of the jurisprudence we have just discussed is that there must be adherence to the statutory scheme, that there are no substantive exceptions and absent the satisfaction of the gateway provisions in section 42 and 43 HFEA, making a declaration of parentage is manifestly contrary to public policy as it would offend the statutory scheme.”

Finding no error in the trial judge’s reasoning, nor any basis upon which to make an exception for the appellant where the HFEA created a non-retrospective statutory scheme for assisted parentage to provide certainty and security for those who enter that arena, the court determined that it would be wrong in law and therefore manifestly contrary to public policy to “effectively circumvent the clear provisions” thereof by granting a declaration of parentage.

Conclusion

Accordingly, the Court of Appeal dismissed the appeal.

C v M & B [2026] NICA 32