The question of who the legal parents are of a child born from IVF is one of extreme importance. One might therefore find it hard to imagine that poor administration at 46% of fertility clinics has led to anomalies which have created uncertainty about this very question.
These uncertainties have arisen when the parents are not married. The Human Fertilisation and Embryology Act 2008 states that when this is the case the mother and her partner must sign specific consent forms before the IVF treatment starts, and they must be given adequate information and offered counselling. And this is where the human error has occurred.
When one thinks about it, it is not hard to imagine the different circumstances in which the admin process might fail: filing a consent form in an a wrong file; forgetting to get consent forms signed; completing the forms incorrectly; completing the wrong form; or a missing page.
If any of these things occur, the mother is recognised as the legal parent of the child, but not her partner. A potentially devastating result for a couple who may have gone through years of IVF treatment. So what can be done?
This question was answered by Sir James Munby on 11th September, when he gave his judgment in response to an application to the Court made by 8 couples. All 8 couples found themselves in the situation where the mother was recognised as the legal parent but her partner (or in two cases ex-partner) was not. Unfortunately, there is no legal way that this can be dealt with outside of the Courts, so all couples had to make an application for a declaration of parentage under the Family Law Act 1986.
The Judge had to answer three main questions. First, if a consent form cannot be found, can other evidence be used to demonstrate that it was signed before IVF treatment. Second, whether a form can be corrected after the IVF treatment has taken place. Third, if the wrong form has been completed, can this be used instead of the correct form. The Judge answered each of these questions positively and in every case (apart from one which was adjourned) the other parent was granted a declaration of parentage.
Unfortunately, the Judge expressed the opinion that these 8 cases are likely to be only the tip of the iceberg. There are likely to be many other couples where the mother's partner finds that they are not recognised as the legal parent of their child. If this is the case, they too will have to make an application to the Court for a declaration of parentage. At least, with the judgment of Sir Munby, the application should be relatively straightforward.
We can also hope that the fertility clinics in the UK will take note, and ensure that their administrative processes are in order! I for one find it surprising that after the medical feat of creating a baby through the IVF process, it is the completing of a form that is the downfall.
The creation, storage and implantation of human embryos is controlled and regulated by the Human Fertilisation and Embryology Act 1990, as amended by the equally complex provisions of the Human Fertilisation and Embryology Act 2008. The statutory regulator is the Human Fertilisation and Embryology Authority. The question of who, in law, is or are the parent(s) of a child born as a result of treatment carried out under this legislation is dealt with in the 2008 Act. It 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?