From April 2009, certain procedural steps have been required to ensure non-birth parents of donor conceived children, who are not married to or in a civil partnership with the birth parent, become the legal parent of their child.
These requirements include ensuring that all parents are given information about legal parenthood and that if consent is given by both parents to the non-birth parent becoming a legal parent, this consent is given in writing and signed before insemination. Each parent must also be offered counselling before the treatment and their decision to accept or reject this offer documented in the medical records.
Unfortunately, a recent audit by the Human Fertilisation and Embryology Authority (HFEA) discovered that 50 clinics - that is over half of those licensed to carry out treatments using donor gametes or embryos - reported anomalies with their practices and procedures in respect of the signing of the consent forms for legal parenthood. This could have the devastating result of child's non-birth parent not in fact being considered as a parent in law, despite the intention of the couple receiving treatment. In a recent response to a Freedom of Information Act request, the HFEA confirmed that the various errors by clinics included:
- Lack of 'Consent to being the legal parent' forms (PP) - and/or 'Consent to your partner being the legal parent' (WP) forms being completed.
- PP/WP consent forms completed and/or dated after treatment began rather than before treatment.
- Incorrectly completed PP/WP consent forms, such as not being signed and/or dated correctly, completed by the incorrect person, forms not fully completed, or some missing pages.
- No evidence in the clinics records of an offer of counselling prior to completion of consents.
All of these errors are likely to mean the non-birth parent is not a legal parent of their child.
Parents who are in this situation should have received a letter from the clinic where they were treated to inform them of this devastating news and encouraging them to seek legal advice.
As the law stands the only option to rectify the position is for both parents to adopt their child. However this would only be an option for parents who are still in a relationship and is not be open to parents who are now separated.
Many parents in this situation feel strongly that adoption is not the right solution for their family. Adoption is lifelong and the effect of an adoption order transforms the relationship between the child and non-biological parent. Adoption in this situation does not reflect the child's identity as a donor-conceived child or the reality of the child's experience of family life.
Merry Varney at Leigh Day and Jemma Dally at Goodman Ray Solicitors are working jointly to assist families in this situation. Jemma Dally is currently involved in an application in the family court, which if successful will mean that families in this situation will be able to secure the legal parental status of the non birth parent without the child having to be adopted. Some people may think why does this matter and simply ignore the letter they have received from their clinic. They are correct as long as no one asks any questions and the relationship between the parents remains solid; but, if the worst happens and any dispute arises about the arrangements for the child, the issues become very real if one 'parent' is actually not recognised as a parent at all.
It is therefore very important that people react to the letter they have received from their clinic and should contact specialist lawyers to take advice on their own situation. Legal action may be necessary and the costs of this should be met by the clinic at which treatment was received. You may also be entitled to reimbursement for the costs of the treatment you received.