One of the most important roles played by judges is to protect individuals against unlawful treatment by the state. In one unique example, the High Court came to the aid of a couple who found themselves caught in a legal nightmare after their twins were born following fertility treatment.

Under the auspices of a reputable fertility clinic, the couple had arranged conception of the twins using donated sperm. However, officials twice refused to register the man as the children’s father because forms that the couple had completed, which were said to be required in order to prove that they had consented to the fertility treatment, were missing. The couple felt that they had no choice but to register the twins’ births with the boxes identifying their father left blank.

The Court had no difficulty in finding that the couple had freely consented to the treatment and in recognising them as the twins’ legal parents. However, a further problem arose because, if their birth certificates were merely amended, the role of the sperm donor would be obvious to all who looked at them. The couple, who had not intended to tell their children that they were conceived using donated sperm, understandably objected to that course.

Ruling on the case, the Court noted that the state, by its actions, had denied the couple the right to decide for themselves, within the privacy of the family, what in their view was in the best interests of their children. In refusing to name the father on the birth certificates, the registrars had followed ‘to the letter’ an official handbook. The Court nevertheless found that they had erred in law and that the relevant parts of the handbook required revision.

In upholding the couple’s judicial review challenge, the Court overturned the birth certificates and directed that entirely fresh ones be prepared. The new documents would give no indication to a future reader that a sperm donor played any part in the twins’ conception.