President of the Family Division Sir James Munby has recommended that consent forms issued by fertility clinics to prospective parents using a sperm donor should be double-checked before treatment starts, to prevent issues of compliance, consent and parentage arising after a child is born.
Fertility clinics issue consent forms Form WP to the woman and Form PP to her partner for completion before fertility treatment. Both parties should also undergo counselling and receive “adequate information”.
Sir James was ruling in eight cases in the The High Court of Justice Family Division, relating to the creation, storage and implantation of human embryos – and the parentage of the children at the centre of the cases, which was under question because of errors made by IVF clinics regarding the consent forms.
The creation of human embryos in fertility treatment is controlled and regulated by the provisions of the Human Fertilisation and Embryology Act 1990 – as amended by Part 1 of the Human Fertilisation and Embryology Act 2008.
Sir James told the court:
“The question of who, in law, is or are the parent(s) of a child born as a result of treatment carried out under this legislation – the issue which confronts me here – is dealt with in Part 2, Sections 33-47 of the 2008 Act. 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?”
Sir James spoke of one fertility clinic which, he said, had fallen “far short” of its obligations – and which had failed to comply with the conditions of the licence granted to it by the Human Fertilisation and Embryology Authority (HFEA).
“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,” he added.
Following a case in May 2013, the HFEA required all 109 licensed fertility clinics to carry out an audit of their records – a total of 51 clinics (46%) had discovered “anomalies” in their records, with WP or PP forms absent from the records.
The HFEA also found WP or PP forms completed or dated after the treatment had begun – as well as incorrectly completed WP or PP forms, including unsigned forms, incomplete forms and forms completed by the wrong person or with missing pages. There was also an absence of evidence of any offer of counselling in some cases.
The eight cases being considered at the High Court Family Division – and referred to as cases A, B, C, D, E, F, G and H – all came to light following the HFEA audit.
Each case raised the question of whether there were valid consents as required by Part 2 of the Human Fertilisation and Embryology Act 2008.
Sir James concluded that the Act, however, “does not prescribe a specific form”.
“Is parenthood to be denied by the triumph of form over substance? In my judgment, not,” he added.
He ruled in favour of seven of the parents seeking parental declarations – Case G has been adjourned for a hearing at a later date.
Sir James added, however, that some responsibility for errors in compliance must be laid at the feet of the regulator, the HFEA.
He said that to ensure compliance with the Act in the future – and ensure that parents consent to legal responsibility for the child created by IVF treatment – a completed Form WP and a completed Form PP should be checked by one person, “probably a member of the clinical team”.
Sir James added that the forms should then be re-checked by another person entirely separate from the clinical team, adding that this person’s “sole function” would be to go through the document “in minute detail” and to draw attention to “even the slightest non-compliance” with the requirements.
“All this, of course, before the treatment starts,” he added.
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