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Woman who adopted child after consent error is given legal parenthood

19 September 2016
Appeared in BioNews 869

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.

The woman's partner, X, underwent IUI at St Bartholomew's Hospital Centre for Reproductive Medicine in London and gave birth to their child. The couple then entered into a civil partnership and the non-birth mother, known as Y, gave birth herself to the couple's second child, also by IUI.

Some years later the couple was informed by the clinic that it had lost or mislaid two consent forms, which recorded Y's consent to treatment, putting her legal parenthood over the first child – as the non-birth mother – in doubt. By virtue of being the birth mother, X was considered to be the first child's legal parent.

'When I received that telephone call I felt like my whole world had been ripped apart. I was no longer [the child's] mummy. This still remains very raw,' Y said in her witness statement.

In making a declaration of legal parenthood in Y's favour, Sir James Munby, President of the Family Division, said it was clear in the circumstances that both women had in fact given their consent. However, the matter was further complicated by the fact that when informed of the error, the couple were told that the only solution was for Y to adopt her own child – a view shared by the HFEA and many clinics and lawyers at the time. The woman made an adoption application which was granted, but the process was described as feeling 'wrong' by the couple.

'I felt I was stared at and judged. I felt that everyone analysed us,' Y said.  'We tried our hardest to do things properly and yet it's like I no longer feel like I am [the child's] mummy. I was [the child's] mummy but now I am [the child's] adoptive mummy.'

Finding that he was able to revoke the adoption order given the unprecedented circumstances – Y was 'in fact and in law' already the child's mother – Lord Justice Munby said he understood that the couple found the adoption process 'very intrusive, very hurtful and a total invasion of their privacy'.

The couple also wanted to ensure that the child's birth certificate would not indicate that the child had been adopted. 'It broke my heart when I had to hand in [the child's] original birth certificate. I am so upset that [the child] now has a different status as an adopted child. [The child] is now different to [their sibling], when [this] should not have been,' Y told the court.

Confirming that the child's birth records would not refer to adoption, the court also returned the original birth certificate – which was unmarked – to the couple.

'I propose to direct that it be handed back to X and Y. It is for them, as also for [the child], a most important document, with, for them, a human, personal and emotional significance which far transcends its purely legal importance,' Lord Justice Munby said.

Meanwhile, Lord Justice Munby also ruled in another consent case heard recently that a woman was not the legal parent of a child, as sought by the parties concerned, because of 'anomalies' in the clinic's paperwork. The couple's relationship had broken down since the child's birth.

On Monday 17 October 2016, the Progress Educational Trust is holding a free-to-attend evening event in London - entitled 'Birth Certificates and Assisted Reproduction: Setting the Record Straight?' - about the purpose and content of birth certificates in light of developments in science, medicine, law and society.

Click here for further details, and email sstarr@progress.org.uk to book your free place.

Case O (Human Fertilisation and Embryology Act 2008) [2016] EWHC 2273
Bailii.org |  13 September 2016
Case O (Human Fertilisation and Embryology Act 2008) [2016] EWHC 2273 (case summary)
Family Law Week |  18 September 2021
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