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Non-birth mother denied legal parenthood after consent errors

10 June 2013
Appeared in BioNews 708

A woman has been removed as the legal parent of twins born following fertility treatment with her former partner, who is the children's genetic mother, after the clinic failed to obtain adequate consent.

The woman, known as AB, separated from her same-sex partner of thirteen years, CD, in June 2011. She sought contact with the twins, who were born in January 2010 following fertility treatment received together by the couple, but CD opposed the application and also sought a declaration from the court that AB was not the twins' legal parent.

The couple began treatment together at a fertility clinic in 2008, where CD received three cycles of intrauterine insemination using donated sperm with the third treatment leading to a successful pregnancy. Although AB was not the genetic mother of the children, she was named as 'legal parent' on the twins' birth certificates. The court heard that AB was involved in the children's upbringing from their birth up until the couple separated.

Before the third cycle was performed, a new law came into force that allowed the partner of a woman receiving fertility treatment, including those in same-sex relationships, to become the legal parent of any resulting children. The couple signed revised consent forms to give effect to AB as a legal parent, but CD contented that the clinic had not complied with the relevant requirements under the HFE, Human Fertilisation and Embryology, Acts 1990 and 2008 so that AB was not, in fact, a legal parent.

Mr Justice Cobb found that the relevant consent forms were not provided before the successful treatment cycle, as required by the law, and declared that AB was not the legal parent of the twins. He heard that CD had downloaded the relevant consent forms from the Internet and had only provided them to the clinic after the successful cycle of treatment had begun.

He went on to say that even if the forms had been submitted on time, because the clinic had not complied with its licence conditions, the consent forms would not have been effective. The clinic had not provided sufficient information to both parties so to enable them to make an informed decision, failed to provide them with an opportunity to receive suitable counselling and failed to maintain adequate records of the treatment and consent processes, the court explained. 

The judge also rejected AB's argument that she should be granted legal parenthood on public policy grounds, saying that policy required the law to uphold the strictly regulated regime for obtaining consent in the provision of fertility treatment.

'This judgment discusses the serious implications for the patients, and the children born to those patients, when the legal duties, procedural requirements and regulatory principles are not observed rigorously', Mr Justice Cobb said. 'Had they been so applied [...] a great deal of distress, and this part of this litigation, would almost certainly have been avoided'.

The application for contact by AB has yet to be considered.

AB v CD [2013] EWHC 1418 (Fam) (24 May 2013)
Bailii |  24 May 2013
Lesbian Fails In High Court Bid To Become Legal 'Parent' Of Ex Partner's Twins
Huffington Post |  24 May 2013
Re: E & F (Assisted Reproduction: Parent) [2013] EWHC 1418 (Fam)
Family Law Week |  3 June 2013
23 March 2015 - by Marisa Allman 
The recent case of X v Y v CRM highlights the potential legal difficulties for children born via assisted conception of clinic error. A recent audit by the HFEA discovered that 50 out of 75 clinics nationwide reported anomalies in respect of the signing or keeping of forms for legal parenthood...
1 July 2013 - by Marisa Allman 
It is a licence condition for all UK fertility clinics that treatment using embryos or donated gametes shall not be provided unless the woman being treated, and any man or woman being treated with her, have been given a suitable opportunity to receive proper counselling and have been provided with relevant information...
10 June 2013 - by Richard Perrins 
The High Court's recent ruling that a lesbian non-birth mother is not a legal parent should remind fertility clinics that they must be fully compliant with the HFE Act 2008...
11 March 2013 - by Dr Kirsty Horsey 
Once upon a time, motherhood was certain. It was proved by giving birth. The Latin maxim 'mater semper certa est' that told us so was irrefutable. Whether or not that was ever actually true, it has for a long while been biologically, as well as socially, questionable....
4 February 2013 - by Nina Chohan 
The UK High Court has granted permission to two sperm donors in a same-sex relationship to apply for contact with their biological children, conceived through a known donation arrangement with two lesbian couples....
24 September 2012 - by Tom Barrow 
The High Court has awarded a lesbian couple sole custody rights for a child conceived using donor sperm and a surrogate's egg after a three-year battle over parenthood...
8 May 2012 - by Sarah Wood-Heath 
There have been a number of high profile cases of late involving disputes within alternative family structures. Primarily these concern fathers or known donors seeking more of a relationship with their child than they originally wished for. However, another interesting and sadly increasing area we are witnessing is the breakdown of relationships in two mother lesbian parent families...
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