In the course of the fertility process you are told both parents need to sign consent forms that once signed will confer on both the biological parent and the non-biological parent, the same rights of parentage without needing to go to court after the birth to get a declaration of parental responsibility, nor adoption orders.
Then some months later the clinic calls you to tell you that due to an admin error, the forms were not completed correctly and the non-biological parent is not legally the child's parent, and probably the only solution is to go through the adoption process.
That is what happened to many couples in the UK who have had fertility treatment using donor sperm and eggs. This is what happened to a family in 2013 and it prompted the Human Fertilisation and Embryology Authority (the HFEA) to require all clinics to audit their cases to see whether there were any other failures by clinics of having failed to get the family to sign both consent form or, having lost or misfiled these legal consents.
At first it was hoped this would be an isolated problem, but as recent case decisions demonstrate, the problem is both widespread and affected many families; they have gone through the fertility treatment process, they have believed that they have acquired legal parentage through filling in the relevant forms, and then they have been contacted after the birth of their child, and after the audit by the clinics, to be advised that the non-biological parent does not have legal parentage. It is devastating for a family.
In the recent court decision handed down only on Wednesday 6 April, the Head of the Family Division, Lord Justice Munby described in the strongest terms how distressing and devastating it must be to a family to believe that they are the parent of a child and then to find out that they have got to go through further legal processes to acquire parentage of their child, and there is no guarantee that process will work. In some cases where the parents' relationship has broken down, the lack of legal parentage has affected their right to contact with their child.
The Family Courts are to be applauded for the open minded approach and pragmatic approach they have taken to resolve this issue for the families that are applying to them in their droves for rectification of their position. Families are succeeding in obtaining legal declarations of parentage, notwithstanding errors made by the clinics, and a large number of the clinics have worked very hard to support the families in this process. It is to be hoped that this is a unique episode in the history of fertility treatment and that we will not see such a widespread error occurring again. However, it should never have happened in the first place, and these cases are a timely reminder of the human cost of admin errors providing medical treatment.
Caron Heyes has a particular interest and expertise in dealing with clinical negligence and contractual claims arising out of failures in fertility treatment. She can be contacted on caron.heyes@fieldfisher.com .