Fertility clinic errors leave more parents embroiled in a legal parenthood dispute

The English High Court recently published another case highlighting mistakes by a UK fertility clinic leaving a couple embroiled in a legal parenthood battle.  In this latest case, F v M & Others [2015], the judge highlighted "precisely the same kind of administrative incompetence by a fertility clinic described by the President" of the Family Division in a legal case reported in September 2015. In that previous case, eight couples' legal parenthood was left in jeopardy. Read more about this previous case.

In this latest case, the parents disputed arrangements for the child. A legal issue arose as to whether a declaration of parentage should be made in favour of the father. The mother asserted she and the father had not signed the necessary consent forms at the clinic (HFEA Forms WP ("your consent to your partner being the legal parent") and PP ("your consent to being the legal parent")). The judge found on the facts the father was entitled to a declaration of parentage. The judge explained her reasoning and commented on the acts and omissions of the fertility clinic:

"It is both alarming and shocking that, once more, a court is confronted with an instance of such striking ineptitude from an organisation which is subject to statutory regulation and monitored by a statutory regulator namely the Human Fertilisation and Embryology Authority (HFEA)".

The judge found the couple had signed the consent forms WP and PP before commencing their fertility treatment. These had subsequently been lost or mislaid at the clinic. Notwithstanding the lost forms, the judge found the clinic acted within the terms of its licence in treating the couple.

The judge found the couple's medical file should have been (but was not) included in the HFEA's Legal Parenthood Audit.  As a result, the Chief Inspector of the HFEA directed an investigation to find the reasons for the error. The judge stated:

"There will be a 'Root Cause Analysis' undertaken by an independent consultancy for UK regulated organisations so as to identify what went wrong.  The investigation will also seek to discover whether the [clinic] complied with the HFEA's request to sample or review files.  Importantly, it will examine how the WP and PP forms were mislaid or lost… The findings of the independent consultancy will be reported to the HFEA so that decisions may be made about what action should be taken".

The judge highlighted the clinic's litigation conduct calling it "wholly extraordinary" and "profoundly disappointing". The judge added:

"The Clinic's bewildering behaviour has undoubtedly added to a situation of enormous tension in circumstances which were already intensely fraught.  It would have assisted greatly if the Clinic had responded to requests for information in a timely and cooperative fashion.  Seldom is it necessary to make orders backed with a penal notice against organisations whose aims include a desire to serve the public and to a high standard.  It was altogether necessary here".

This case highlights the importance of effectively managing the legal issues and paperwork associated with undergoing fertility treatment at UK fertility clinics.  Fertility patients need to give informed consent to treatment. They require a full understanding of the legal issues, implications and outcomes of their fertility treatment for themselves and their much wanted children. Learn more here about the importance of informed consent to fertility treatment and the value of expert fertility law advice.

Discuss your situation or obtain more information about fertility treatment law in the UK  by contacting Louisa Ghevaert, head of the fertility and parenting team at Michelmores,  by email louisa.ghevaert@michelmores.com or call +44 (0)207 788 6382.