Solutions to resolve legal parenthood failures
12th September 2015
Parenthood and the law - a landmark English case with implications for Scotland
Yesterday, a judgment handed down from the High Court in England declared the legal status as parents of seven people who, having successfully undergone fertility treatment, subsequently discovered that they may not in fact be the parent of their child.
It is over two years since it first became apparent that, due to administrative failings on the part of some fertility clinics, unmarried couples undergoing fertility treatment using donor sperm may not have completed the consent forms which the law requires to be completed prior to treatment to ensure that the father, or second woman in the case of lesbian couples, is legally the child’s parent.
In terms of the Human Fertilisation and Embryology Act 2008, prior consent of both prospective parents is an essential element of the creation of parental status for the father or other parent. The Act requires certain forms to be completed and signed to signify consent before treatment takes place.
Shockingly, following audits carried out at the request of the Human Fertilisation and Embryology Authority, ‘anomalies’ in paperwork were identified in a significant number of cases. All those parents affected are understood to have been contacted by the clinic where they received their treatment. In his judgment, Sir James Munby, President of the Family Division, describes the failures of the clinics involved as ‘serious and systemic’.
The judgment interprets the requirements of the 2008 Act so as to allow the existence of prior written consent to be demonstrated by other evidence where forms were completed but lost; and to allow forms which were either incorrectly or not fully completed or which are not in the form prescribed by the HFEA to constitute the necessary written consent.
This will come as huge relief to the families involved and offers hope to others who have been told that they are in a similar situation. Each case will turn on its own particular facts however, and further applications to the court can be expected over coming months
What of parents and children in Scotland who are affected? The 2008 Act is UK wide legislation, but the Scottish Courts are not bound to apply the same approach to interpreting the Act as in England and Wales. It remains to be seen whether a similar approach will be taken when cases come before the Scottish courts, which is expected to happen over coming months.
At SKO we have unrivalled expertise in cases involving assisted reproduction in Scotland. If you are affected by the issues raised in this case or by similar issues, please contact a member of our team for further advice.
