106. The Court of Appeal referred in McConnell at paras 23 onwards to an issue that had been raised at first instance before the President of the Family Division, Sir Andrew McFarlane, as to whether Mr McConnell could lawfully have been provided with the fertility treatment which resulted in the birth of his son. In his judgment at first instance ([2019] EWHC 2384 (Fam), [2020] Fam 45), the President noted that the fertility treatment provided by the clinic to Mr McConnell could only lawfully be provided if it comprised “treatment services” capable of being licensed by the Human Fertilisation and Embryology Act 1990 (“HFEA”). “Treatment services” were defined in section 2 of the HFEA as services provided “for the purpose of assisting women to carry children”. It is a criminal offence to undertake the creation of an embryo except in pursuance of a licence. The President noted:
“155. If at the time that he received treatment services at the clinic [Mr McConnell] had been a woman (which by virtue of the GR certificate he was not) then the placing into his womb of gametes, in the form of permitted sperm, would have been lawful under the terms of the clinic’s licence, assuming any other licence conditions had been complied with. It must, however, be at least questionable whether the provision of treatment services to a man is within the range of activities that the HFEA is permitted to authorise by licence.”
107. The Government’s case before the court in McConnell was that a decision that Mr McConnell was not a “woman” for the purposes of the scheme would have grave adverse policy consequences. The treatment might be wholly outside the regulatory scheme with the possible result not only that the treatment was unlawful, but that the donor of the sperm became the legal father of the child. The Government also rejected Mr McConnell’s argument that the word “woman” in the HFEA now meant “person”; that would “cause insuperable problems elsewhere in the HFEA”: para 157. The President declined to determine the issue and the Court of Appeal also did not consider it necessary or appropriate to comment on the question of whether Mr McConnell’s treatment was lawfully provided: para 26.
108. This court also does not express any view on that issue. We note only that the effect of the rule in section 9(1) on the very many statutes referring to men and women, whether enacted before or after the GRA 2004, must be carefully considered in the light of the wording, context and policy of the statute in question. It is likely to be unhelpful for the coherence of the law to impose a stringent test for the application of section 9(3).
Page 32
