“Widespread incompetence” of fertility regulator and clinics lamented by President of Family Division

11 September 2015 by Rosalind English

A and others (In the matter of the Human Fertilisation and Embryology Act 2008) – read judgment

This case is best summed up in Sir James Munby’s own words:

This judgment relates to a number of cases where much joy but also, sadly, much misery has been caused by the medical brilliance, unhappily allied with the administrative incompetence, of various fertility clinics. The cases I have before me are, there is every reason to fear, only the small tip of a much larger problem.

These cumulative cases

 must raise questions as to the adequacy if not of the  Human Fertilisation and Embryology Authority’s regulation then of the extent of its regulatory powers. That the incompetence to which I refer is, as I have already indicated, administrative rather than medical is only slight consolation, given the profound implications of the parenthood which in far too many cases has been thrown into doubt. This is a matter I shall return to at the end of this judgment.

The HFEA is the statutory regulator governing the creation, storage and implantation of human embryos under the complex provisions of the Human Fertilisation and Embryology Act 1990, as amended by the equally complex provisions of Part 1 of the Human Fertilisation and Embryology Act 2008. The HFEA has stringent rules regarding the formalities to be complied with for parenthood to be established.

These cases all concerned the question of who, in law, was or were the parent(s) of a child born as a result of treatment carried out under this legislation.

It is, as a moment’s reflection will make obvious, a question of the most fundamental gravity and importance. What, after all, to any child, to any parent, never mind to future generations and indeed to society at large, can be more important, emotionally, psychologically, socially and legally, than the answer to the question: Who is my parent? Is this my child?

The applicants all sought a declaration of parentage, after it had turned out that due to some error or mismanagement, the requisite consent forms did not satisfy HFEA’s requirements. In no case was the grant of that relief challenged by the other partner, by the child’s guardian or by the relevant clinic.

Factual background

The individuals in these cases would all have been through years of private tribulations which, in the judge’s words, would have resulted in “enormous joy” to both the woman and her partner, to discover that she was pregnant; followed by the worry and 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, the evidence from these cases 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, W’s partner might not legally be the parent.

In one case, where the parents had struggled for twelve years of “grief and pain” to produce a child, it was hardly surprising to learn that they were “devastated and heartbroken” when told by the clinic that the mother’s partner was not the child’s parent. In another case, the comment was, “it is simply not fair.”

It is testament, said the judge, to the enormous dignity the applicants displayed, even while the case was going on and they did not know what the outcome was going to be, that despite their justified criticism of how they felt let down by professional people they had trusted, they did not give voice to greater anger and more strident criticism.

He found from the evidence that there was no doubt that the fertility treatment had been carried out in all cases with the full knowledge by both the woman and her partner, and that it was the intention of both that the father would be the legal parent of the child, and that both believed that they had fulfilled the requisite form-filling required by the HFEA rules. The first they knew that anything was or might be ‘wrong’ was when they were subsequently written to by the clinic.

The issues before the Court

There were in essence two questions to be decided.

1. Is oral evidence enough to establish parenthood when the requisite consent forms cannot be found?
2. Can errors in the consent forms be corrected retrospectively?

The judge had no problem with the second question, after all there are many cases where such rectification has been required in transferring property or in trust documents.

The problem is, the HFEA has immense powers under the Act to revoke licences and generally get in the way of treatment. In some cases where there is failure to comply with their form-filling requirements, consent is invalidated and parenthood is in doubt. If the fertility clinic does not use HFEA’s specific consent forms, could parliament really have intended that to be “fatal” to the establishment of parenthood? In Sir James Munby’s view, it could not.

The Court’s decision

The President concluded that, in principle, oral evidence was enough to establish that consent had been given in proper form, even though the paperwork was lost, and that irregular forms could be rectified appropriately.

This was a highly state regulated area touching on an intimate part of people’s lives – so private that even close relatives or friends would not have been privy to what was going on. So the judge was anxious not to go through the evidence of each case individually. On the other hand, there was a need to identify each and every of the clinics involved. They all stood guilty of “serious shortcomings”, and in the case of two of them, “repeated and systemic failings”

Why, in the circumstances, should their shortcomings be shielded from public scrutiny, or, indeed, public criticism?

The judge made the declarations of parenthood as the applicants sought, being at pains to stress that these involved no ‘reading down’ of any of the relevant statutory provisions:

I have proceeded in accordance with the strict letter of the legislation, applying long established principles of construction in cases of obvious mistake. There is no conceivable basis in public policy for refusing to make the declarations.

He added, as an afterword, given the potentially disastrous consequences of not following the requisite procedures of HFEA form filling, that these requirements should be spelt out in such a way that no-one could miss them:

 I cannot help thinking that it might be better if this FUNDAMENTALLY IMPORTANT requirement, and the potentially DIRE LEGAL CONSEQUENCES of non-compliance, were expressed in more emphatic, indeed stark, language and, in addition, highlighted by appropriate typography. By appropriate typography I mean the use of bold or italic type, CAPITAL letters, or a COMBINATION of all three; the use, for example, of red ink; and the flagging up of key points by the use of ‘warning’ or ‘alert’ symbols. To be fair, some effort has been made to highlight particular points, but I suggest that the process could go further.

Furthermore, potential parents undergoing this treatment could only be helped by a third party going over the paperwork once it had been completed to make sure everything was in the correct form and order, so that there could be no doubt about consent – and parenthood – once the baby is born.

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