Last week, the English High Court published a judgment highlighting mistakes by UK fertility clinics which left eight couples' legal parenthood in jeopardy and highlighted a further 75 similar cases. The couples had to seek declarations of parentage from the High Court, following mistakes completing patient consent forms at UK fertility clinics. The legal difficulties were brought to light following a 2014 audit by the Human Fertilisation and Embryology Authority (HFEA) of patient consents to legal parenthood. Each case involved children who had been born following donor insemination but where statutory requirements had not been complied with.
In the matter of HFEA 2008 (Cases A, B, C, D, E, F,G and H Declaration of Parentage) , fertility treatment had been undertaken by eight couples at three fertility clinics licensed by the HFEA. An HFEA audit had highlighted problems with the consent forms completed by the couples, specifically HFEA Forms WP ("your consent to your partner being the legal parent") and PP ("your consent to being the legal parent"). These forms had been mislaid, lost or incorrectly completed and legal issues also arose about the validity of internal clinic consent forms used. The HFEA audit followed a previous High Court ruling in 2013 which described 'lamentable shortcomings' by a fertility clinic in dealing with patient consent forms, which had fallen 'far short' of its obligations and had failed to comply with the conditions of its licence granted by the HFEA.
The President of the Family Division, Munby J, highlighted the importance of legal parenthood stating:
"The question of who, in law, is or are the parent(s) of a child born as a result of treatment is… as a moment's reflection will make obvious, a question of the most fundamental gravity and importance. What, after all, to any child, to any parent, never mind to future generations and indeed to society at large, can be more important, emotionally, psychologically, socially and legally, than the answer to the question: Who is my parent? Is this my child?"
The President described the picture that emerged in this case as 'alarming and shocking'. The President granted declarations of parenthood to seven of the cases and one case remained to be determined. He stated:
"The picture revealed is one of what I do not shrink from describing as widespread incompetence across the sector on a scale which must raise questions as to the adequacy if not of the HFEA's regulation then of the extent of its regulatory powers. That the incompetence to which I refer is, as I have already indicated, administrative rather than medical is only slight consolation, given the profound implications of the parenthood which in far too many cases has thrown into doubt".
The President also named the clinics involved saying:
"I can see no reason at all why the clinics should not be identified… Why, in the circumstances, should their shortcomings be shielded from public scrutiny or, indeed, public criticism? I can think of no compelling reason. On the contrary, if public condemnation serves to minimise the risk that any future parent is exposed to what these parents had to suffer, then it is a price worth paying".
The President painted a compelling picture of the difficulties suffered by the couples as a result of the legal problems they experienced. He stated that the cases were "some of the most powerful, the most moving and the most emotionally challenging I have ever heard as a judge". He praised the dignity of the parents involved for not giving voice to greater anger and more strident criticism. The President also stated "The cases I have before me are, there is every reason to fear, only the small tip of a much larger problem".
This case highlights the critical importance of effectively managing the legal issues and paperwork associated with undergoing fertility treatment at UK fertility clinics. Fertility patients need to give informed consent to treatment and they require a full understanding of the legal issues, implications and outcomes of their fertility treatment for themselves and their much wanted children.