Posted by Patrick Hart, Partner
On 1 September 2016 Withy King LLP merged with Royds LLP. The trading name for the merged firm is Royds Withy King. All content produced prior to this date will remain in the name of the firms pre-merger.
Anomalies in fertility clinics leave couples in legal limbo
Nearly one in two licensed fertility clinics have “anomalies” in their records, a regulator’s audit has revealed.
Checks by the Human Fertilisation and Embryology Authority showed such “anomalies” in records kept by 51 of 109 licensed clinics.
The details emerged in a ruling by the most senior family court judge in England and Wales. Sir James Munby, President of the Family Division of the High Court, described the outcome of the audit as “alarming” and spoke of “administrative incompetence”.
His comments came after the case of seven couples who had assisted reproduction by sperm donor. Dozens more may have been affected.
Consent forms, which give legal parental status, were not properly completed by clinics, it emerged. The law requires both members of a couple being treated for IVF to sign their respective correctly drafted forms.
This entitles medical treatment to proceed under the terms of the clinic’s license and for both of them to be legally regarded as parents of any children born from the treatment, irrespective of whether or not both of them are biologically the parents of their children.
The case itself involved five heterosexual couples and two same-sex couples, but Sir James himself said “there is every reason to fear” that these cases were “only the small tip of a much larger problem”.
He asked “what could be more important, emotionally, psychologically, socially and legally” than knowing who your parents are?”
Sir James added: “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.”
He declared that the court was able to use ‘parol evidence’ to establish consent in the absence of the correct forms or in relation to forms completed after the treatment had taken place. This means any non-written evidence such as verbal declarations could be taken into consideration. Similarly, incorrectly completed documentation could be rectified or corrected.
Therefore, he ruled that the couples, (two of whom had since separated but which made no difference to the issue at hand) were entitled to a declaration of parentage.