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President of the Family Division criticises IVF clinic and lawyers

11 April 2016
Appeared in BioNews 846

The President of the Family Division, Sir James Munby, has criticised as 'insensitive' the handling of a claim brought by the biological mother of twins who was the victim of an administrative error at a fertility clinic that led to her legal status as a parent being put in doubt.

The case involved two women, now separated, who had undergone IVF together as a same-sex couple at IVF Hammersmith. Mistakes were made regarding the taking of consent necessary to confer legal parenthood to X, the non-birth mother, who was also the children's genetic parent, with each parent signing the wrong form.

The effect was that while as the gestational mother, Y was regarded as the mother, X was not recognised in law as being a legal parent, despite the couple's intention that both of them would become parents of any children born. The clinic accepted that it had made an error and X sought a declaration that she was a legal parent, which was supported by Y.

In addition to matters raised in a similar case, Re A, in which he also made critical remarks (reported in BioNews), the court in the present case considered how it could correct the mistake so as to render the consent legally effective. The court also dealt with the matter that at the time of treatment, Y was in a civil partnership with another woman, CP, and although they had separated, the parenthood provisions under the relevant legislation could confer legal parenthood on CP - which would be an obstacle to X's application. 

Granting the declaration to X, Lord Justice Munby held that rectification was in principle available and there were no grounds for refusing relief. In any event, a 'wholesale transposition of the printed texts of the consent form' could rectify the mistake. He also held that CP had on the facts not given consent and so could not be considered a legal parent under legislation, and so was not a obstacle to the relief X sought.

He went on, however, to make remarks about the clinic's solicitors who had written to the applicants following the error in a 'cold and impersonal' manner. A subsequent letter that offered £1,000 'in reflection of your experience' was described as 'crass and insensitive' by the judge, who added 'even to describe it in this way is understatement on the grand scale'.

Furthermore, Lord Justice Munby added that if an offer of financial compensation was appropriate at all, then the figure offered was 'so wide of the mark as to be not merely insulting but almost offensively so'.

He outlined evidence from X who spoke of being 'shocked and angry' and how she felt that 'my whole life had been turned upside down by a phone call'. The other woman, Y, said 'Words cannot explain how terrible I felt...' and that she was 'extremely angry', not least because she had paid a clinic for what she called a 'premium service'.

Lord Justice Munby said: 'If ever there was a situation calling for empathy, understanding, humanity, compassion and, dare one say it, common decency, never mind sincere and unqualified apology, it is surely this.'

He also criticised the director of the clinic for a 'mealy-mouthed' observation in his witness statement, expressing 'regret that any error occurred' and saying that there 'are now procedures in place to ensure as far as possible that this will not happen again in other cases'. He noted that the clinic's senior infertility counsellor had treated the parents with sympathy and understanding after the error came to light.

BBC News reports that a spokeswoman for IVF Hammersmith said: 'We understand the stress the process and hearing has caused and we are sorry for this. We would like to reiterate that we have learned from this case.'

Blundering clinics deny IVF children legal parents
The Sunday Times |  10 April 2016
Re G (Human Fertilisation and Embryology Act 2008) [2016] EWHC 729 (Fam)
Family Law Week |  18 January 2022
Senior judge criticises 'insensitive' handling of IVF case
BBC News |  6 April 2016
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