Barbara Hewson is a barrister at 12 Gray's Inn Square.
A landmark ruling by Judge Wilson in the Family Division on 19 February 1997 adds a new twist to the relationship between the Human Fertilisation and Embryology Act 1990 and EU law.
In U v W, the court was asked to make a declaration of paternity over twins born as a result of donor sperm treatment given to a couple by a fertility clinic in another EU member state. U was the mother; W, her partner at the time, suffered from low fertility.
S.28(3) of the Act provides that, where an unmarried couple is provided with "treatment services" together "by a person to whom a licence applies", and donor sperm is used, then the man is deemed to be the father of any child born as a result. There was a factual dispute between U and W as to whether they were taking treatment services "together" when they went abroad. That was resolved in U's favour.
The second, more interesting, legal question was posed by the requirement in s.28(3) for treatment by "a person to whom a licence applies". Foreign clinics operating outside the UK are not licensed by the Human Fertilisation and Embryology Authority. Was this contrary to article 59 of the Treaty of Rome?
Article 59 provides: "restrictions on freedom to provide services within the community shall be progressively abolished during the transitional period in respect of nationals of member states who are established in a state of the community other than that of the person for whom the services are intended".
U argued that s.28(3) was a restriction on the right to receive services, contrary to article 59. Judge Wilson decided that s.28(3) was such a restriction, but that there were policy reasons which justified it which were proportionate.
He emphasised the unmarried man's right to proper counselling on the financial and long-term consequences of statutory paternity under s.28(3). It was also important that issues of "status", such as paternity, could be resolved by access to clinic records. Treatment at clinics abroad could not guarantee the same level of consumer protection and evidential certainty as UK licensed clinics for men in W's position.
It was not contrary to community law for men like W, who went abroad with their partner for donor sperm treatment, to be excluded from the statutory presumption of paternity in s.28(3).