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What happens when fertility clinics get legal parenthood wrong?

Date:5 APR 2018
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If you are an unmarried couple conceiving with donor sperm at a fertility clinic in the UK, then you rely on your clinic both to provide good medical care and to ensure you will both become the legal parents of your child.

The Human Fertilisation and Embryology Act 2008 creates a process which must be followed at a fertility clinic in order for a non-biological father or non-birth mother through sperm donation to become his or her child’s legal parent; both parents must receive counselling and proper information about the forms they are signing, and then must complete and sign Human Fertilisation and Embryology Authority (HFEA) Forms WP and PP. All this must be done correctly before conception takes place, so that the requirements are met for legal parenthood to be established at the point of conception. If the process is completed correctly, an unmarried non-biological father will be the legal father of his child and an unmarried non-birth mother will be the second legal parent (see NGA Law articles for men using donor sperm and lesbian non-birth mothers for more information about this).

The front-line nursing staff/clinicians who work at fertility clinics are responsible for ensuring this process is followed correctly, but the forms which confer legal parenthood are just one small part of an enormous volume of paperwork which patients need to sign, and in practice the process does not always run smoothly.

This can have enormous and lifelong significance for parents and their children in terms of status, the child’s birth certificate, financial and parental responsibility, inheritance rights, nationality, pension rights and, most importantly, the child’s identity. In a nutshell, dealing with legal parenthood correctly ensures that the family unit is and feels legally secure and the non-birth parent has a lifelong connection with their child which will continue long beyond the day they turn 18 and become an adult.
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What happens when fertility clinics get legal parenthood wrong?

Sometimes, however, mistakes are made. Following an HFEA audit in 2013, shockingly 42% of the UK’s fertility clinics reported that they had discovered cases in which there had been procedural or paperwork errors meaning that the father or second parent’s legal status was potentially questionable. There were a variety of errors which ranged from missing forms to missing signatures.

A group of affected parents applied to the UK family court for help. In a case known as the ‘Alphabet case’ the President of the Family Division, using a certain amount of legal gymnastics, was able to find a way of curing the mistakes retrospectively and to make declarations that the non-biological parents were the legal parents of their children (see Re Human Fertilisation and Embryology Act 2008 (Cases A, B, C, D, E, F, G and H) [2015] EWHC 2602 (Fam), [2017] 1 FLR 366). Over 30 further cases have now been heard in which declarations of parentage have been made to resolve any uncertainty.

What do I do if my clinic has told me there is a problem with legal parenthood?

Don’t panic. There should be a way of getting things resolved, and the process need not be complex or difficult from your perspective. If you are notified by your clinic that there is a potential problem with your legal parenthood, the first step is to get some legal advice about whether you need to make a court application. If you do, your fertility clinic should be supportive and help you get things resolved (and cover the cost).

NGA Law has represented a number of families in these cases, all successfully, and in a recent case we asked the President of the Family Division to set out a clear procedure for resolving these cases more efficiently (and in many cases without the parents needing to attend court if they do not wish to do so). You can read more about this in the recent articles NGA Law has written for Resolution journal and Fertility Road.

This article was originally published by NGA Law