IVF clinic mistakes create legal lacuna for children - beware the traps of the UK’s complex legal parenthood rules

19 April 2016

We have recently seen several reported cases dealing with the legal fall out when mistakes are made by some IVF clinics in relation to consent forms, leaving a number of parents in the unhappy position where they are not the legal parents of their children.

The Judge in the case of The Human Fertilisation and Embryology Act 2008 (A & Ors) [2015] EWHC 2602  (“Re A”) described the situation as “alarming and shocking”, making clear that legal parentage is “a question of the most fundamental gravity and importance”.  We see similar consequences for parents in surrogacy cases where the commissioning parents are not the legal parents of a child born as a result of a surrogacy arrangement, despite genetic connections. 

Another upsetting IVF case hit the headlines this week when a father was told by the IVF clinic that he was not the child’s legal father because of a mix up with consent forms.  The couple believed that they had signed the relevant forms as legally required and had done all that was needed to ensure that they would both be the child’s parents.  It is devastating for a family to find out, years later, that there are legal problems with parentage of their child.

The complex rules for acquiring parenthood (in cases involving assisted reproduction) are set out in the Human Fertilisation and Embryology Acts (HFEA 1990 and 2008). Under the relevant legislation, there are two fundamental requirements to ensure that the unmarried partner of a woman receiving IVF treatment becomes the legal parent of the child carried by her partner. These are:

  • Consents must be given in writing before the treatment by the woman and her partner (forms “WP” and “PP”); and
  • Both the woman and her partner must be given adequate information and offered counselling.

If the consents are not correctly completed (or have not been completed at all, as was the case for some of the applicants in Re A), the gestational mother’s partner is not the legal parent of the child and therefore does not have parental responsibility for the child (i.e. custody in its widest sense –for example the right to make decisions for the child relating to medical treatment, religion, schooling, passport applications). In the recent cases, because of errors made by the clinics, parents have later discovered they are not the legal parents and have had to apply to court for a “Declaration of Parentage”; a declaration that they are the child’s parents. 

Following a case heard in 2013, the HFEA required all of its licensed clinics to carry out an audit of their records relating to the consent requirements and it has transpired that there are a large number of cases where there are anomalies in the records kept by the clinics. The court has described this as “administrative incompetence”.

Further information

If you are affected by these or similar cases, or you have had IVF treatment and you are concerned about legal parentage of your child/children, please contact Connie Atkinson, who is a specialist in the field of fertility law and can guide you through the available options.

You may also be interested in reading our previous blogs relating to international surrogacy.

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