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'Widespread incompetence' across the fertility sector, says senior judge

14 September 2015
Appeared in BioNews 819

The President of the Family Division, Sir James Munby, has spoken of 'widespread incompetence' in the fertility sector and has questioned the adequacy of the regulatory framework overseen by the Human Fertilisation and Embryology Authority (HFEA).

The comments came in a High Court ruling concerning seven cases that involved administrative errors or anomalies in the taking of consent. The errors meant that the legal parental status of the parents affected was put in question, with legal and emotional consequences that followed. Each of the applicants sought a declaration that they were the legal parent of their children.

Following a court case in 2013 in which problems were first brought to light, the HFEA required fertility clinics to carry out an audit of their records (see BioNews 792). Of 109 licensed clinics, 51 subsequently reported anomalies in their records, including an absence of consent forms, forms signed after the treatment commenced or forms that were incomplete. The HFEA has since indicated there may be a further 75 cases.

'The picture revealed is one of what I do not shrink from describing as widespread incompetence across the sector on a scale which must raise questions as to the adequacy if not of the HFEA's regulation then of the extent of its regulatory powers,' said Lord Justice Munby.

'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.'

Unmarried parents undertaking fertility treatment using donated sperm or embryos are required to provide written consent to the partners' legal parenthood. The HFEA requires clinics to comply with certain formalities for a partner of a woman receiving treatment to be treated as a legal parent, including consent given in writing before treatment commences, and also the provision of adequate information and the offer of counselling.

In making a declaration of parentage in each of the cases, Lord Justice Munby said there was sufficient evidence that even where forms had been lost, consent had been given in its proper form in accordance with the statutory framework. He emphasised that this did not involve a 'reading down' of the statutory provisions, ruling also that errors made when completing the forms could be rectified by the court.

He then emphasised that all clinics should 'meticulously and all times' comply with HFEA guidance and directions, and that clinics should check and recheck that the relevant forms have been completed correctly. He added that guidance should also be made clearer for clinics.

'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,' he said.

Commenting on the decision, the HFEA said: 'We are working with the clinics involved to make sure affected patients are contacted and offered the support and advice that they need. We have also changed our approach on inspection to make sure that consent processes in clinics are tightened up and that staff are properly trained.'

It is likely there are more couples whose parental legal status may now be in doubt because of administrative errors. 'The cases I have before me are, there is every reason to fear, only the small tip of a much larger problem,' said Lord Justice Munby.

30 January 2017 - by Antony Starza-Allen 
The High Court has ordered that new birth certificates be produced for twins born following fertility treatment, after the originals failed to include the father because consent forms were missing.
26 September 2016 - by Anest Mathias 
In April 2009 the parenthood provisions of the Human Fertilisation and Embryology Act 2008 came into force. This governs parenthood following the use of donor gametes, including sperm...
19 September 2016 - by Antony Starza-Allen 
A woman who adopted her child, after being told that an administrative error during fertility treatment meant that her legal parental status was in doubt, has been granted legal parenthood by the Family Court...
22 August 2016 - by Antony Starza-Allen 
A High Court judge has questioned aspects of the consent process for fertility treatment in a ruling in which he made a declaration of parentage in respect of a child born following IVF...
18 April 2016 - by Cait McDonagh 
A clerical mistake at a Sheffield IVF clinic meant that a father's status as his child's legal parent was put in doubt...
22 June 2015 - by Antony Starza-Allen 
The High Court has ruled that a decision not to allow a mother to take her deceased daughter's eggs for fertility treatment overseas was lawful...
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...
2 March 2015 - by Merry Varney and Jemma Dally 
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. Unfortunately, a recent audit by the Human Fertilisation and Embryology Authority (HFEA) discovered that 50 clinics reported anomalies with their practices and procedures in respect of the signing of the consent forms for legal parenthood...
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...
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