When is a parent not a parent?

Administrative errors are a common fact of life. All of us (lawyers included) are prone to mistake. Unfortunately, sometimes those mistakes can have quite significant consequences. The President of the Family Division, Sir James Munby, had to grapple with that problem when he heard the matter of HFEA 2008.

The matter concerned the applications of no less than 7 parents who were seeking declarations of parentage in respect of their children. In each case, the children concerned had been born by way of donor insemination, overseen by a number of fertility clinics. These parents clearly considered themselves to be parents of their children. However, the fertility clinics said otherwise. This was because in the case of these 7 parents, the correct forms to confirm that the donors consented to fertility treatment had either gone missing, or were not the mandated forms specified by the Human Fertilisation and Embryology Authority (HFEA).

The President indicated in his judgment that it would clearly be wrong to deprive a child and parents of a legal relationship because of an administrative error relating to incorrect paperwork. As far as he was concerned, the crucial issue was that each donor had provided written and informed consent to fertility treatment, as required by the law. He heard evidence at length from the parents, commenting that it was:

“…some of the most powerful, the most moving and the most emotionally challenging I have ever heard as a judge. It told of the enormous joy, both for the woman and her partner, to discover, in some cases after a hitherto unsuccessful journey lasting years, that she was pregnant, having taken a pregnancy test that they had scarcely dared to hope might be positive; the immense joy of living through the pregnancy of what both thought of from the outset as “their” child; the intense joy when “their” child was born. In contrast, it told of the devastating emotions – the worry, the confusion, the anger, the misery, the uncertainty, the anguish, sometimes the utter despair – they felt when told that something was wrong about the parental consent forms, that, after all they had been through, all the joy and happiness, [her] partner might not legally be the parent.”

The oral and written evidence presented to the President left him in no doubt that in each case, it was clear that the relevant consent to fertility treatment had been provided, even if not in the correctly prescribed manner. Declarations of parentage were accordingly made in favour of the 7 parents.

The President’s clear regard for the emotional turmoil and distress suffered by the parents contrasts starkly with his criticism of the “administrative incompetence” demonstrated by the fertility clinics. As a postscript to his judgment, he made a series of recommendations to the fertility clinics to avoid future repetition of the mistakes inflicted upon the 7 parents. However, he feared that given the number of fertility clinics in the UK (over 100), it was more than likely that the 7 parents he had dealt with were “only the small tip of a much larger problem.”