Fertility Treatment Can Be a Legal Minefield, Judge Warns

Fertility treatment involves a bewildering array of legal requirements on which would-be parents are wise to seek professional advice. The point was illustrated by a High Court case in which simple filing errors by a respected fertility clinic left a number of men in doubt as to whether they could be recognised as legal parents of children born through sperm donorship.

An audit of the clinic’s affairs by the Human Fertilisation and Embryology Authority had led to the discovery of ‘parenthood issues’ in 14 cases. In most of those cases, consent forms were missing from the clinic’s files. Such forms had to be signed by unmarried couples before treatment began so that the men could be acknowledged as lawful parents of children to whom they were not genetically related.

One couple had been trying to have a baby for seven years and their child was six months old when they were informed ‘out of the blue’ that the consent form was missing from their file. The clinic accepted ‘full responsibility’ for the debacle – described as a ‘serious incident’ – and ‘apologised unreservedly’ to the couple.

Finally ending a year of uncertainty for the couple, the Court accepted that the man had probably signed the form before treatment commenced and that the most likely explanation was that the document had been ‘mislaid’ within the clinic’s unsecured filing system.

The Court noted that it was unlikely to have been Parliament’s intention when it passed the Human Embryology and Fertilisation Act 2008 that a child should be deprived of his or her parentage simply because the treating clinic had failed to maintain proper records.

Observing that most couples who require fertility treatment understandably rely on clinics to guide them through the ‘labyrinthine’ rules surrounding the process, the Court found that it was clearly in the child’s best interests to have two parents and that it was therefore right to treat the man as the child’s legal father.