Administrative errors at IVF clinics jeopardise families’ legal parenthood

In this recent case, the President of the Family Division made damming criticisms of IVF clinics across the UK, and their regulator the Human Fertilisation and Embryology Authority, highlighting a pattern of “widespread incompetence” across the sector.

This case was brought by a group of parents who had conceived children using IVF treatment with donated sperm. They were left in a precarious position when they discovered that the non-biological parent was not their child’s legal parent. This was only brought to their attention after an audit of 109 clinics which was carried out at the direction of the HFEA.  Shockingly, the audit uncovered that 51 clinics had mistakes in their records.

If an unmarried woman is having IVF treatment using a sperm donor, and wants her partner (whether a man or a woman) to be the child’s second legal parent, it is essential that the correct consent forms are signed before the treatment starts. The birth mother should sign Form WP, and her partner should sign Form PP. The clinics in this case had made various errors, such as incorrectly completing the forms, failing to get the parents to sign the forms before the treatment began, or losing the forms, which put the second parent’s legal status in jeopardy.

The clinics had failed to protect their patients’ parentage, leaving them vulnerable and causing them “much misery”. The most worrying aspect of this case is that there could be countless other couples across the UK whose parentage is not as it should be, but who are unaware of the situation. The remedies applied by the court in this case (declarations of parentage) were given to these parents after a careful analysis by the judge of each particular set of circumstances.  The judge found that, in each case, either the forms had been signed by subsequently lost, or the mistakes were so obvious they could be corrected by the court, or the court could accept alternative documents as evidence of consent.

While this means resolution for the parents involved in this particular case, others in the same position cannot be completely certain of their own position unless they make a similar application. This has wide reaching consequences for parents, who, through no fault of their own, are left in a state of limbo with no obvious solution.

Fertility clinics (and the HFEA which regulates them) were urged to sharpen up their practices when treating patients conceiving with donor sperm, to ensure that these problems do not continue in the future.  The forms relating to parenthood are so critical, the President said, that they should be clearly and boldly marked, and clinics should consider asking a legal professional to confirm they have been completed correctly.

If you are affected by these issues and would like some advice, please don’t hesitate to get in touch with us on +44 (0)20 3701 5915.