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Fertility treatment and consent to legal parenthood: no room for errors

Date:13 OCT 2016
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By Louisa Ghevaert, partner and head of the fertility and parenting team at Michelmores LLP

The ruling by Sir James Munby, President of the Family Division, In the Matter of the Human Fertilisation and Embryology Act 2008 (Case V) [2016] EWHC 2356 (Fam) is the fifteenth in a series of fertility treatment cases 'gone wrong'. The parents in Case V were referred by the clinic to specialist fertility lawyer Louisa Ghevaert at Michelmores LLP.

In Case V, the President granted another Declaration of Parentage to a woman because of a missing patient consent form at a UK fertility clinic licensed by the Human Fertilisation and Embryology Authority (HFEA). Depressingly, Case V arose because of mismanagement of legal aspects governing consent to fertility treatment and legal parenthood at UK fertility clinics.

Case V came about because the HFEA Consent Form PP ("your consent to being the legal parent") was signed at the appropriate time but no signed HFEA Form WP ("your consent to your partner being the legal parent") could be found on the clinic's records.

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Case V focused on securing a declaration of parentage for the applicant and the financial and emotional costs of resolving the situation, which was not of the couple's making.  The couple acknowledged clinic staff were "professional, kind and organized, affording a feeling of comfort" and treated them with "respect and courtesy".  

The President highlighted the difficulties suffered by the couple as a result of the legal problems they experienced recounting the woman's evidence "knowing I did not have the legal rights to be Z's parent was completely overwhelming and rocked me to the core". He went on to say "For the first time ever in her life she suffered depression.  When addressing me in court she described the information as "truly heartbreaking" and repeated how she had been "rocked to my core". 

Case V sets out what the President termed a "depressing history" of delay and non-payment of the couple's legal costs to put things right.  The President stated "It may be that, as part of the approach, the court should in future be invited to make costs orders 'as the case goes along'". The judgment records the couple found non-payment of their costs "daunting, distressing and disappointing". The couple stated "it made us both feel angry and exasperated."

Wider issues

Importantly, Case V brings into focus wider issues concerning delivery of fertility treatment in the UK. There is no question consent to medical aspects of fertility treatment is best undertaken by medical professionals, but that is only part of the picture.

These important legal aspects are not simply an 'add on' for busy medical professionals focused on delivering quality fertility treatment. These legal aspects underpin the whole process and are often not fully understood. They create the legal framework for families created through assisted conception.  All fertility patients require specialist tailored legal advice. This takes time, care and focused expertise from an experienced fertility lawyer.  Patients need to understand and navigate the legal issues, implications and outcomes of fertility treatment and family building. Completion of consent forms at UK fertility clinics should not be just a form filling exercise. They are important legal forms which confer legal rights, obligations, protection and status on patients, donors, surrogates and future born children. They also govern acquisition, storage and use of eggs, sperm and embryos in fertility treatment.  These complex legal aspects require independent specialist legal advice from an experienced fertility lawyer. 

Case V demonstrates when legal aspects are mismanaged it can have unintended outcomes leaving parents without legal status for their child. Legal mismanagement can also confer unwanted legal status on others and create wider emotional, practical and financial issues. Resolving legal issues, difficulties and disputes after the event can be problematic, emotionally demanding and time consuming as Case V shows.

This raises the question why are these complex legal aspects of fertility treatment still being put upon nurses and doctors at UK fertility clinics?

The parents in Case V were represented by specialist fertility lawyer, Louisa Ghevaert, Head of the Fertility and Parenting team at Michelmores LLP who can be contacted by email louisa.ghevaert@michelmores.com or by telephone +44 (0)207 788 6382.