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NANE 0F ST0BENT: }anene Loke

S0B}ECT: Family Law

T0T0R: Noam Peleg

T0T0RIAL uR00P: C

TITLE 0F ASSIuNNENT: Pioblem question


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2
A.
With iegaius to Belle's paientage, a uistinction must be uiawn between legal
paienthoou anu paiental iesponsibility.

Legal paienthoou confeis a funuamentally impoitant status on both paient anu chilu,
making the chilu a membei of the paient's family anu biinging with it a coie bunule of iights
anu iesponsibilities. In the context of natuial iepiouuction, English law has tiauitionally
placeu the gieatest emphasis on the genetic link between paient anu chilu, as exemplifieu
by B v B anu F (No 1).
1
Bowevei, uevelopments in assisteu iepiouuction have poseu
challenging new questions wheie the genetic, gestational, anu social paients may be
uiffeient people.

Belle was conceiveu using in vitio feitilisation "using a uonoi egg anu uonoi speim",
which means she has no genetic connection with Elif, ueoige, oi Nichael. The Wainock
Committee consiueieu that in the inteiests of ceitainty the gestational mothei shoulu be
accoiueu the legal status of motheihoou. This iecommenuation was enshiineu in sSS(1) of
the Buman Feitilisation anu Embiyology Act 2uu8, wheie "the woman who is caiiying oi
has caiiieu a chilu as a iesult of the placing in hei of an embiyo oi of speim anu eggs, anu no
othei woman, is to be tieateu as the mothei of the chilu." Egg uonation is iegaiueu as
absolute: no legal iights oi uuties attach by viitue only of hei genetic paientage. Bence, Elif
is iegaiueu as Belle's only legal mothei.

Beteimining pateinity is consiueiably moie complicateu. Piovisions in the BFEA
2uu8 apply since the conuition set uown in sS4 is satisfieu: Belle "has been caiiieu by a
woman as a iesult of the placing in hei of an embiyo oi of speim anu eggs." S41(1)
specifically pioviues that the speim uonoi is not Belle's fathei as he uonates speim foi the
puiposes of "tieatment seivices".

As unmaiiieu fatheis, Nichael anu ueoige aie uealt with unuei ssS6-S8. SS6 confeis
legal paienthoou on a man who is neithei ielateu to the chilu by bloou oi by maiiiage to the
chilu's mothei, pioviueu the fatheihoou conuitions aie satisfieu. SS6(a),(c), anu (u) aie
satisfieu as Elif's feitility tieatment was unueigone at a licenseu clinic (assuming the

1
|1969j P S7
S
tieatment was auministeieu in the 0niteu Kinguom), both Nichael anu ueoige aie alive at
the time of insemination, anu both uiu not contiibute speim to the cieation of the embiyo.

Auuitionally, the two putative fatheis must satisfy the agieeu fatheihoou conuitions
set out in sS7, which establishes a stiaightfoiwaiu piocess of notification: the mothei anu
the putative fathei must both have notifieu the licenseu pioviuei in wiiting that they
consent to the man being tieateu as the legal fathei of any iesulting chilu. Nichael cannot be
iegaiueu as Belle's legal fathei, since contiaiy to sS7(1) he has not given notice in wiiting
"stating that he consents to being tieateu as the fathei of any chilu iesulting fiom tieatment
pioviueu".

While ueoige consenteu to the fiist cycles of tieatment, he hau sepaiateu fiom Elif by
by the time Elif conceiveu Belle. Similaily in Re R (IvF: Pateinity of Chilu),
2
the unmaiiieu
paitnei consenteu to becoming the legal fathei of any chilu boin as a iesult of the feitility
tieatment unueigone by the mothei, but the mothei faileu to infoim the clinic upon
successful implantation that she hau sepaiateu fiom hei unmaiiieu paitnei. The Bouse of
Loius helu that wheie the consenting couple sepaiates befoie a successful implantation
takes place, the "joint enteipiise" of feitility tieatment enus, anu the man is not the legal
fathei of the iesulting chilu. Although Elif's IvF tieatment staiteu out as a "joint enteipiise",
the "joint enteipiise" of feitility tieatment hau enueu by the time the successful tieatment
hau begun, because by that stage Elif anu ueoige hau sepaiateu. Thus ueoige is not the legal
fathei of the iesulting chilu.

In the eyes of the law, Elif is Belle's only legal paient.

B.
A uoctoi can pioviue tieatment to a chilu which he believes to be in the chilu's best
inteiests if anu only if the chilu is competent anu consents to the tieatment, oi those with
paiental iesponsibility consent.

Belle is not yet 16, anu hence hei consent to the aboition cannot automatically be
"effective as it woulu be if (she) weie of full age" vis--vis the Family Law Refoim Act 1969
s8(1).

2
|2uuSj 0KBL SS
4

As Belle is still 14, we must ueteimine whethei Belle is uillick competent because if
she is not, hei views will caiiy veiy little weight save as one of the factois in ueciuing what
will be in hei inteiest. The Bouse of Loius in uillick v West Noifolk anu Wisbech Aiea BA
S

helu that even a chilu unuei 16 coulu be competent to consent to meuical tieatment if he
hau sufficient unueistanuing of the issues even if it conflicts with the chilu's welfaie (Nabon
v Nabon
4
). Whethei a chilu has sufficient unueistanuing anu intelligence to make a
paiticulai uecision is an issue of fact, uepenuing on the complexity of the issues involveu,
anu the chilu's emotional anu intellectual matuiity. uillick applies to the piovision of all
auvice anu tieatment to chiluien in ielation to sexual matteis, incluuing aboition
S
, as helu in
R (Axon) v Secietaiy of State foi Bealth.
6


Fiist we must consiuei whethei Belle unueistoou the meuical issues involveu. As the
Couit of Appeal emphasiseu in Re R (A Ninoi) (Waiuship: Consent to Neuical Tieatment)
7
,
a chilu woulu neeu to unueistanu the pioposeu tieatment, the consequences of the
tieatment, anu the consequences of not giving the tieatment. Foi example, in Re L (Neuical
Tieatment: uillick Competency)
8
, the chilu was founu not competent because she uiu not
unueistanu exactly what woulu happen to hei if the tieatment was not pioviueu. In this
case, Belle is "matuie foi hei age" anu she may, theiefoie, be able to show that she
unueistanus the meuical issues aiounu the aboition.

Belle must unueistanu not only the meuical issues but also the moial anu family
issues involveu. In Re E (A Ninoi) (Waiuship: Neuical Tieatment)
9
, a chilu was founu not to
be competent because he uiu not appieciate his paients' giief if he weie to uie. In this case
Belle woulu neeu to show she appieciateu the impact losing hei baby woulu have on hei
paients. She woulu neeu to show she was awaie of the potential impact on hei family life if
she weie to consent to the tieatment hei paients wisheu hei not to have. If the couits aie
willing to finu Belle competent, Belle consents anu that is the enu of the stoiy. Bowevei,

S
|1986j AC 112
4
|2uuSj EWCA Civ 6S4
S
R. Tayloi, "Reveising the ietieat fiom uillick. R (Axon) v Secietaiy of State foi Bealth"
|2uu7j 19 CFLQ 81
6
|2uu6j EWBC S72 (Aumin)
7
|1992j 1 FLR 19u
8
|1998j 2 FLR 81u
9
|199Sj 1 FLR S86
S
since Belle "is still too young to unueistanu fully the consequences of such a uecision", it is
likely that she will be ueemeu incompetent to consent to the aboition.

Assuming Belle is not uillick competent, the ability of Angela, Elif anu Nichael to
make uecisions conceining Belle's planneu aboition uepenus on whethei they have paiental
iesponsibility ovei Belle. Although laigely unuefineu in the Chiluien's Act 1989, paiental
iesponsibility gives an inuiviuual the powei anu authoiity to make uecisions iegaiuing the
chilu's upbiinging. The CA uoes not uiiectly uefine the scope of paiental iesponsibility, it
incluues "the iight to consent to meuical tieatment".
1u


Paiental iesponsibility is confeiieu automatically on Elif as she is Belle's mothei. Elif
has the iight to consent to the aboition on Belle's behalf, anu without hei consent uoctois
cannot peifoim the aboition. 0nmaiiieu oi social fatheis must acquiie paiental
iesponsibility in accoiuance with s4(1)(a)-(c). Nichael may acquiie paiental iesponsibility
by jointly iegisteiing Belle's biith, agieeing in a piesciibeu foim, oi applying to the couit foi
a paiental iesponsibility oiuei. 0ntil he has uone so, Nichael has no paiental iesponsibility
ovei Belle.

Bowevei, it is not necessaiy foi a peison to have paiental iesponsibility to be
entitleu to take action in a chilu's inteiests. Section S(S) pioviues that a peison who "has
caie" of a chilu without having paiental iesponsibility may uo "what is ieasonable in all the
ciicumstances of the case foi the puipose of safeguaiuing oi piomoting the chilu's welfaie".
Nichael anu Angela can both be iegaiueu as people caiing foi a chilu in the paient's
absence, anu may, foi example, aiiange emeigency meuical tieatment. But while the
piovision legitimizes shoit-teim anu emeigency measuies, the scope of the piesent
piovision is not cleai. It is unlikely that it will covei aboition authoiization since it is neithei
shoit-teim noi an emeigency. Thus, Angela anu Nichael aie unlikely to have any iights in
the mattei of Belle's planneu aboition.

Although the geneial policy of the CA 1989 is that paients have iesponsibility foi
making uecisions about theii chiluien, Elif's wishes as paient aie not ueteiminative. When a
couit is askeu to ueteimine any question involving the upbiinging of a chilu, the welfaie of
the chilu is its paiamount consiueiation. If the mattei is biought befoie the couit, as Waiu

1u
Re A (Ninois) (Conjoineu Twins: Neuical Tieatment) |2uu1j 2 WLR 48u
6
L} puts it in Re A (Ninois) (Conjoineu Twins: Neuical Tieatment)
11
, "Paiental iight is.
suboiuinate to welfaie." In that case the couit exeiciseu its inheient juiisuiction to oveiiiue
the paients' iefusal to consent to an opeiation that woulu iesult in the ueath of the weakei
twin. Bolman } maue the same point moie foicefully in An NBS Tiust v NB (A Chilu by
CAFCASS a uuaiuian Au Litem)
12
, aiguing that the wishes of the paients weie "wholly
iiielevant to consiueiation of the objective best inteiest of the chilu save to the extent in any
given case that they may illuminate the quality anu value to the chilu of the chilupaient
ielationship." Thus it woulu be necessaiy foi the couit to weigh up all the benefits anu
uisauvantages of aboition to calculate what woulu be in Belle's best inteiests. uiven Belle's
young age, hei inability to caie foi a chilu, anu hei consent to aboition tieatment, caiiying
on the piegnancy will most piobably auveisely affect hei physical anu emotional well-being,
anu the couit is likely to iule that the aboition is in Belle's best inteiests.

(Woiu count: 1Suu)

11
|2uu1j 2 WLR 48u
12
|2uu6j EWBC Su7 (Fam)