Commenting in the Times this week, Caron Heyes called for the law to have more power to claim compensation for clients let down by fertility clinics.
Last month, my client sobbed with relief in court. After months of uncertainty, the judge had told him that despite the monumental incompetence of the fertility clinic mishandling essential paperwork in his wife's conception via donor sperm, he did indeed have the right to call himself the legal father of a child he'd been bringing up for years.
Sir James Munby, the president of the Family Division, mopped up the clinic's mess applying the doctrine of consent, something he's done in similar IVF cases where clinics have bungled paperwork, ruling that when signed paperwork was missing, circumstantial evidence – such as participating in the fertility process together –is enough to show the intention of both to be parents.
The skill of the judge was to adapt the law to suit the reality of modern parenting in terms of admin. Currently, though, there is nothing the law can do to compensate the family for the horror of the mistake.
The fertility industry is exploding, and with it the likelihood of further mistakes. Same sex couples and single women are swelling the growing number of people seeking help to conceive, and pay handsomely for that help.
Sperm and egg donation, surrogacy, egg freezing and 'add-ons' to increase the chance of success have turned the industry into an estimated £15billion annual business globally.
The point about family is that it's where we're most vulnerable. Any threat cuts deep. The law can protect would-be families by fining the clinics for administrative errors in their treatment and the regulators can bring them into line by threatening their licences.
But civil law does not have the ability to punish clinics for the pain they cause when they muck about with people's hope of having children, nor compensate them for draining their savings in the process.
Last week, a 47-year-old woman contacted me for help after she was left devastated when the donor eggs she was promised by a clinic, and which she had paid to reserve, were mistakenly given to another couple. That may have been her last chance.
There is little I can do for her since to bring a claim for compensation for injury to her feelings, and to her ability to start a family, we would first have to prove she had suffered a physical injury. Even then, the damages recoverable would be minimal and probably not worth the strain of legal action. In law, the intense emotional pain of having one's dreams dashed doesn't count.
Lord Winston, a pioneer of IVF, recently described the fertility business as a 'jungle', damningprivately run clinics for over-charging patients and unscrupulously treating couples doomed to failure. He also said he'd be surprised to find any head of such a clinic earning less than a seven-figure salary.
The speed of medical progress in areas of fertility and genetics is changing the way families are created. This firm recently won the right to challenge the concept of patient confidentiality in genetic medicine after doctors failed to warn a young pregnant woman that her father had a genetic disease she could pass onto a child. In this case, the law may adapt to progress, but, generally, it is lagging way behind.
Unless the law has the teeth to protect individuals by claiming compensation when they are emotionally and financially damaged by negligent treatment, clinics and their wealthy directors will never take their responsibility to patients seriously.
Such damages would never be huge, but they might at least pay for one last round of appropriate treatment, which may just result in success.
By Caron Heyes
By Caron Heyes.
Caron is a solicitor in our Clinical Negligence team in London. She has pursued clinical negligence claims on behalf of patients across a broad spectrum of claim types, including obstetrics and gynaecology, neonatology, oncology, cardiology, Emergency, fertility and patient rights. Caron has a particular expertise in complex neonatal, obstetric, surgical mismanagement and accident claims and is experienced in providing advice and representation at inquests.
The Legal 500, and Chambers, UK, a Client's Guide to the Legal Profession, have repeatedly recognised Caron's expertise as a leader in the field of Clinical negligence, and recommended her as an "experienced, adept and supportive lawyer" and "a star associate".