A UK judge recently declared that a lesbian non-birth mother is not a parent, because of the failure of a fertility clinic to comply with the Human Fertilisation and Embryology (HFE) Acts 1990 and 2008 (reported in the current edition of BioNews).
The judge found that the 'consent to legal parent' forms, which one of the parties downloaded from the Internet, crucially were not provided before treatment took place. The decision underlines the complexities of the law in this area and the careful attention needed by same-sex couples embarking on fertility treatment as well as their clinics.
The case involved a lesbian couple who had been in a relationship for 13 years. In 2008 - before the HFE Act 2008 came into force - the couple were planning to start a family together. By the time the biological mother conceived the twin boys, the law was in force.
When the couple separated, the non-birth mother issued an application for contact with the twins. The birth mother then challenged whether her former partner should be considered a parent.
The case was decided on its own specific set of circumstances, and centred round whether the couple involved had signed and submitted their consent forms prior to receiving treatment in May 2009. The rules providing parenthood by virtue of signing such forms had only come into force the month before. Justice Cobb concluded that the forms had not been submitted before treatment and therefore the non-biological mother could not be a parent due to non-compliance with Section 43 of the HFE Act 2008.
Taking this one step further, the judge also ruled that even if the forms had been submitted within the correct timeframe, they were in breach of the clinic's licence obligations. In particular, the clinic had failed to offer adequate counselling to the parties before treatment; they had not provided sufficient information to enable the couple to make informed consent on the issue of parentage; and the records on consent form delivery and treatment were inadequate.
Furthermore, Mr Justice Cobb scrutinised the issue of whether there was 'informed consent'. He was keen to stress that the guidance is clear, and the emphasis is on clinics to provide detailed information to patients on the treatment they are receiving and the potential implications involved.
The wider implications of the decision for patients and clinics alike remain to be seen but it's worth noting that the non-birth mother's case is not over. There is to be a further hearing to determine whether she should be able to apply for contact in the wake of his decision.
Mr Justice Cobb emphasised that whilst his strict interpretation of the statutory provisions has determined that she is not the legal parent, this 'is not the end of the story'. He points out that 'a parental relationship can take many forms, not just dependent upon biological or legal links; psychological and social parenthood, is, or can be, meaningful for children'.
The decision will serve as an important reminder for fertility clinics to ensure that when treating patients in similar situations, their procedures are fully compliant with the statutory criteria as set out in the HFE Act 2008. For couples who have undergone or are considering treatment, this case highlights how there can often be considerable heartache if the relationship breaks down, with parties trying to assert a higher status over the other in order to try and exclude them.