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Up to 50% of UK Fertility clinics are failing to ensure unmarried couples who rely on sperm donors to get pregnant also become legal parents of their children

Caron Heyes
19/11/2014
After the Fertilisation and Embryology Act was revised in 2008, couples who have children after fertility treatment using a sperm donor or donor eggs following fertility treatment were given the right to be deemed the child's legal parents, notwithstanding that lack of biological connection with the child so long as certain basic processes were followed before the child was conceived. The procedure in question involves firstly obtaining the consent from the biological parent to legal parenthood being given to the non-biological parent and then the non-biological parent also agreeing to to that. They consent by each signing a prescribed form from the HFEA. However, audits carried by the HFEA have shown an increasing number of failings on the part of clinics, whether they are private fertility clinics or fertility clinics operating within NHS trusts, to obtain appropriate consent from families and the result is that there are some parents who have had fertility treatment in order to start a family with their partner who may not have legal parentage of their child even though they thought they had obtained it when they went through the treatment.

To give an example, Jane Smith and Simon Says decide to have a child using a sperm donor. Ms Smith signs a form saying that she consents to Mr Says being treated as the legal parent of their child, if she becomes pregnant. He signs a form saying he consents to becoming the legal parent. This consent cannot be given after the child has been conceived.

The problem has come to light partly because of audits done in the past but also because of a very distressing case that was heard in the family courts last year, when a couple having gone through fertility treatment to have a child, split up. The biological mother decided she didn't want the non-biological parent to have any access rights to their child. On further investigation, it was discovered that the consent form granting legal parenthood to the non-biological parent hadn't been completed and as a result, the parent who had cared for, loved and cherished their child found out that she was to be denied any right to parenthood of that child. It is a horror scenario. As a parent myself, I cannot imagine waking up one morning to be told that because I had not been asked to sign a piece of paper by the clinic I had gone to in good faith to provide fertility treatment, or because they had lost the paperwork, my child would not be legally deemed my child, I would have no say over their upbringing, and that child could be taken away from me at the whim of my partner. What a terrifying scenario for any parent. And let's remember sometimes there are family breakdowns not because of divorce or separation but because there is a death of a parent and then other family members come into the equation.

After this case the HFEA required all clinics who are licensed by them, to carry out an audit of the records of patients who were neither married nor in a civil partnership, and who received treatment using donor sperm or donor embryos on or after 6 April 2009. Rather alarmingly, nearly 50% of responding clinics reported anomalies with their procedure for obtaining legal parenthood consent, so that those couples did not both have legal parentage rights. I myself have acted for families where there has been a failure to obtain a proper consent and so this is not an imaginary worry but a real problem within the fertility industry in the UK, and a real concern to the HFEA.

As a result of this, HFEA have produced guidance on how to deal with the problem. They also published a case study on how to deal with the scenario when there is no legal parenthood, and guidance to ensure effective legal parenthood consent for couples going forward.

In the case study published by the HFEA, the couples were contacted, offered an apology and advised to seek their own legal advice. Very importantly, the cost of the legal services the families had to incur in order to obtain legal parenthood status was covered by the Clinic.

In my experience, the families are not always told of the error by the Clinics and if a family has any concern they should query this with the clinic, asking the clinic to produce a copy of the forms the parents signed to consent to legal parenthood.

If families signed the consent forms and they have been lost, then it is possible to obtain a declaration in the Family Court that they are deemed the legal parent, securing their rights of parenthood going forward. In the absence of all forms, it may be that further steps would need to be taken to secure legal parenthood.

The good news is that if you identify that due to a flaw in the consent process, you have not had legal parenthood rights conferred on you, you can mostly deal with the problem. The bad news is that it doesn't take away the distress caused by the Clinic's error, and it adds a further stressful, upsetting and lengthy process on top of everything you went through going for fertility treatment to have your child. For some people, it mars, even if temporarily, the joy of having their child; if you find it out at an early stage after the birth of your child, it really can impact on the enjoyment of those early days. It can also mean that the private arrangement of having fertility treatment may become public knowledge even within your immediate social and family group.

I have been asked whether there is any legal remedy other than obtaining the legal costs of rectifying the position. In some cases, if there is evidence that the enjoyment of having the child has been affected by the failure to confer legal parentage rights; the family can obtain damages in a very modest sum, for the loss of enjoyment of the contract between the parents and the clinic. In each case there may be other costs associated with the clinic's failure that can be compensated.

I have acted for families in this situation, and I generally work closely with Fiona Wilson, a specialist family lawyer at Blake Morgan, to obtain appropriate legal remedies, rectify the parentage errors, and importantly, protecting the privacy of my clients by obtaining, where appropriate, anonymity orders.

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