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Judge criticises HFEA consent forms

22 August 2016
Appeared in BioNews 865

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.

In commenting on matters of practice, Mr Justice Peter Jackson queried whether the requirement of ticking a 'half a centimeter square' box on a consent form was necessary, given that it would be easy to overlook.

'Everybody makes mistakes in filling in forms from time to time, even important ones, and experience shows that mistakes can be made in checking forms. I fear that the small tick box in this case is in some respects an accident waiting to happen', he said, noting that such 'trivial' errors in paperwork can lead to serious legal consequences – and also significant legal costs.

The comments came in a case concerning a couple undergoing IVF using donor gametes who were unmarried at the time of treatment. Although signing consent form WP that would have enabled the partner to become a legal parent, the female patient had failed to tick the required box - 'the absence of no more than a centimetre of ink in a tick box is nothing more than an understandable error', the judge observed. The woman's partner made an application to court to become his child's legal parent, which the judge granted with 'no hesitation'.

The mistake came to light after an audit was conducted by the Human Fertilisation and Embryology Authority (HFEA) following court rulings that identified a number of mistakes in the taking of consent (see BioNews 792). Since then, the High Court has dealt with a number of cases concerning paperwork errors, in one of which the President of the Family Division, Sir James Munby, spoke of 'widespread incompetence' in the fertility sector (see BioNews 819).

Justice Jackson went on to add that having discussed the matter with Lord Justice Munby, he wished to draw the attention of the HFEA to the wording of consent forms WP and PP. He said where the form asked the person completing it to sign, it would seem 'unnecessary' for there also to be a tick box.

'I cannot detect the purpose of the tick box when the effect of the consent could as easily be described in the declaration above the signature', he said: 'I would invite the HFEA to consider whether this part of the form is not in fact superfluous at best and a potential trap at worst.'

Justice Jackson also criticised the fertility clinic involved, the Hewitt Fertility Centre,
 for not informing the couple that a mistake had been made on a consent form until eight months after it was discovered – although he noted the couple had 'nothing but praise' for the staff and the treatment they received. The judge said the clinic had 'understandably' sought advice from the HFEA regarding the incident, but a delay of such a length could not 'possibly be justified'.

'The families who are affected by predicaments of this kind are, in my view, entitled to be told at the earliest stage reasonably possible, however painful the news will be,' he said, adding that couples should be able to get their own advice 'in real time' rather than relying on the clinic or the HFEA.

'There was, in my view, nothing to prevent the clinic from informing this couple at the outset, giving assurances as to legal costs. This may have led to matters taking a different and possibly swifter course,' Justice Jackson said.

Finally, he noted that clinics should file their witness statements at the earliest stage in proceedings so that matters could be brought to a conclusion more quickly.

D v D (Fertility Treatment: Paperwork Error) [2016] EWHC 2112 (Fam)
Family Law Week |  17 October 2021
Fertility clinic delay 'cannot be justified'
Stowe Family Law LLP |  18 August 2016
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...
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...
11 April 2016 - by Antony Starza-Allen 
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21 September 2015 - by Andrew Berkley 
There is no excuse for the administrative incompetence of fertility clinics that has resulted in legal parenthood uncertainty for at least 84 couples, but are medical providers the ideal professionals to seek consent for legal parenthood?...
14 September 2015 - by Antony Starza-Allen 
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...
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...
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