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Fertility clinics’ incompetence leave couples in legal limbo

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March 28, 2024

Anyone who has ever worked in an office knows that admin can be a pain. It’s time consuming, dull, and you can never quite escape the feeling that you have better things to do. In our office, diktats from those on high – our admin team – rain down on us like manna from heaven almost daily, and no one escapes. However, despite all those diktats, office manuals, processes, procedures, reviews, peer reviews and so forth, at the end of the day all systems everywhere depend on the actions of people to be workable. This includes those right down at the bottom of the chain, all doing what they are expected to do. And not everyone always does what they should, never dreaming for one moment the havoc it could cause.

With the best will in the world, the larger the organization, the more likely the slip ups. We see a prime example of this in a recent High Court judgment, where the medical staff in fertility clinics have done a fantastic job enabling infertile couples to conceive but, because of slipshod administration further down the food chain, what should have been unqualified joy has caused shock, pain anguish and devastation on an unimaginable scale.

Recently (and as a result of one previous case), 109 British fertility clinics carried out an audit of their records and 46 per cent of them discovered “anomalies” among their paperwork. These clinics can only operate under a license which requires them to ensure their records are fully and properly kept.  Breach of the terms of their licence through slipshod paperwork can then invalidate what happens thereafter to the couples whom they are treating and the children born as a result.

The law is set out in Section 33 – 47, Part 2 of the Human Fertilisation and Embryology Act 2008. It requires both members of a couple being treated for IVF to sign their respective correctly drafted consent forms. This entitles medical treatment to proceed under the terms of the clinic’s license and for both of them to be legally regarded as parents of any children born from the treatment, irrespective of whether or not both of them are biologically the parents of their children.

You can imagine the potential for slip ups in busy clinics. Couples nervously waiting to begin treatment. The administrative side is probably the last thing on their minds, and apparently also of the people tasked with completing the forms and filing them.

“Sign the consent forms here please… where did I put them?” (I will find them later). “Sign these forms they look ok to me” (It doesn’t matter if they aren’t the correct forms). Or “Sign these forms” (It doesn’t matter if they’re not correctly completed).

Perhaps they think it doesn’t matter if you sign them afterwards. Surely no-one will mind. Or maybe they wonder if it matters that they forget to get all the forms signed.

Yes it does matter. It absolutely does matter. Without those forms properly completed and filed, the clinic is in breach of its licence to treat, and more importantly, the law does not recognise the partner as the parent of the resulting child.

These couples had put their trust in these highly reputable clinics and been let down in the worst way imaginable. None of this was the fault of the medical staff, this was all because of their administration.

So, post the review, what could be done in the absence of the correct paperwork for eight couples in that situation?

They brought proceedings in the High Court for parental declarations, instructing top lawyers such as James Turner QC and Janet Bazeley QC to argue in the context of the existing legislation, as to what legally could be done about these deficiencies to get the couples home.

President of the Family Division Sir James Munby, sitting at the Royal Courts of Justice in London, heard the case. As expected, he left no one in the slightest doubt of his views. It can’t have been a pleasant experience for the clinics involved or their lawyers as he thundered about “the lamentable shortcomings” and that was just for starters.

Sir James said “there is every reason to fear” that these cases were “only the small tip of a much larger problem”.  He asked “what could be more important, emotionally, psychologically, socially and legally” than knowing who your parents are?”

The President said that the evidence he heard from each couple was “some of the most powerful, the most moving and the most emotionally challenging [he had] ever heard as a judge”. The couples each described their “enormous joy” when they found out the treatment had worked. For one of the couples, it was the culmination of twelve years of trying.

They told Sir James of “the worry, the confusion, the anger, the misery, the uncertainty, the anguish, sometimes the utter despair” they felt when informed that one of them was not legally a parent. He commended each couple for “the enormous dignity they displayed” when giving their testimony, despite what they had gone through.

But what could be done? The ingenious legal minds had their say in a hearing which of course was unopposed. It was the law and its interpretation that mattered in such unfortunate circumstances.

The President declared that the court was able to use ‘parol evidence’ to establish consent in the absence of the correct forms or in relation to forms completed after the treatment had taken place. This means any non-written evidence such as verbal declarations could be taken into consideration. Similarly, incorrectly completed documentation could be rectified or corrected.

Therefore, he ruled that seven of the eight couples, (two of whom had since separated but which made no difference to the issue at hand) were entitled to a declaration of parentage. The remaining couple’s case was adjourned for a later date.

Sir James concluded his decision with a recommendation that, post-completion, the forms be carefully checked by a second person. After all, becoming a parent was surely as important as buying a house or making a will.

The wish of many couples to be a parent can be so very strong, and cases like these prove it. Whilst these couples were fortunate to have their predicaments rectified, others have not been so lucky. Earlier this week, I looked at the case of a single man who was told he could not be recognised as his child’s sole parent. This was because the Human Fertilisation and Embryology Act 2008 dictates that only couples can make such applications. The law it seems can go only so far, and no further.

To read A & Ors (Human Fertilisation And Embryology Act 2008) in full, click here.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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