Home News Family and Children Law Undergoing Fertility Treatment? The Legal Formalities Are All Important

Undergoing Fertility Treatment? The Legal Formalities Are All Important

Form filling is viewed as a bore by many, but in the context of human fertilisation and embryology it could hardly be more important. In one case, two missing consent forms left one half of a same-sex couple in grave doubt as to whether she would ever be recognised as the legal parent of her longed-for child.

The couple’s son was conceived at a fertility clinic using donated sperm. There was no doubt as to the legal parenthood of the woman who gave birth to the child. However, the question of whether her partner, who was not biologically related to the child, was entitled to the same status depended on strict compliance with all the legal formalities having been achieved.

The clinic was obliged by the Human Fertilisation and Embryology Act 2008 to give the couple adequate information concerning the treatment that they were to undergo and to offer them counselling. As they were neither married nor in a civil partnership, they were both also required to fill in and sign forms consenting in advance to the treatment.

After the birth of their son, the clinic was audited by the Human Fertilisation and Embryology Authority and discovered that the forms were missing. That cast doubt on the partner’s status as the boy’s legal parent which could only be dispelled by making an application to the High Court for a formal declaration of parentage. The clinic supported her application and agreed to pay her legal costs.

Ruling on the matter, the Court noted that the couple remained in a close and loving relationship. They approached the clinic together and made it clear that they wished to be treated as a couple. They were informed and counselled in accordance with the Act and both wanted the partner to have legal parenthood. They were not casual about the conception process and were diligent in filling in other forms.

The Court found it more probable than not that the couple had in fact completed the consent forms prior to undergoing treatment and that the forms were later mislaid due to an administrative error on the clinic’s part. Despite the disappearance of the forms, the Court was satisfied that the requirements of the Act had been met. There were no reasons connected to the welfare of the child why a declaration of parentage should not be granted.

A declaration of parentage, the Court observed, is a highly significant step, not to be taken lightly. Having seen lovely photos of the boy with his parents, however, it was delighted to be able to make the declaration sought. The clinic had taken steps to correct its past failings in record keeping. A quality control coordinator had been engaged to check that all consents were in place and completed correctly.

12 August 2021
Last Updated
14 October 2021