Precarious Paternity?

In 2015, Reproduction on March 13, 2015 at 9:01 am

It has been a busy few weeks in the Family Court, with a number of cases of note re assisted conception, surrogacy, and the implications for legal parenthood thereafter. Two such examples are B v C & D (Surrogacy: Adoption) [2015] EWFC 17, and X v Y & St Bartholomew’s Hospital Centre for Reproductive Medicine [2015] EWFC 13. The Guardian neatly summarised the first case with its headline: ‘Woman acted as surrogate mother for son’s IVF baby, court hears’. And while the facts of the case may be unusual, the arrangement was perfectly lawful within the relevant statutory framework. An adoption order was granted to ensure the biological father (the ‘son’) became the legal father – as without such an order the surrogate mother (his mother) and her husband (his father) would remain the legal parents of the child. Justice Theis commented that: ‘The arrangement the parties entered into is not one, as far as I am aware, that either this court or the clinic has previously encountered and although highly unusual, is entirely lawful under the relevant statutory provisions set out below’ [8]. Indeed, she emphasised how ‘unusual’ this case was at three other junctures (paragraphs [3], [29] and [30]), just for good measure. As one might imagine, a quick trawl on-line reveals that not all reporting/social media coverage has been supportive. What is also clear from this case is the importance of proper legal advice, as without meeting the statutory requirements, (other, i.e., future hypothetical) parties may commit a criminal offence under the adoption legislation.

The second case concerns the importance of consent and ensuring not only that it is provided, but that clinics store the requisite proof of consent before, during and after treatment. In this instance, an unmarried couple in a heterosexual relationship used licensed donor insemination and had a child, Z, in August 2013. As per the statutory framework, both X (father) and Y (mother) were recognised as the legal parents of Z from birth, with no requirement to do anything further (i.e., other than to register Z’s birth in the usual way). One can only imagine their surprise to receive a phone call ‘out of the blue’ from the clinic the following February, to inform them that the ‘necessary consent (sic) may not have been completed’ [9]. Following the earlier decision of AB v CD [2013] EWHC 1418 (Fam) – which gave rise to issues for a co-mother regarding her (non-)legal status in relation to the children in question – the Human Fertilisation and Embryology Authority audited clinics to check whether the statutory requirements were being met in relation to consent in the context of donor conception (and presumably, also, more broadly). Alarmingly, perhaps, the audit of this clinic revealed the following:

‘The CRM audit identified 184 patients that have undertaken fertility treatment using donor sperm during the relevant period. 170 had no legal parenthood issues (of which 102 were unsuccessful following treatments; 1 was a new patient; 11 were unsuccessful but have frozen embryos stored to use in future treatment; 54 were successful and 2 were not able to be contacted) and 14 had parenthood issues. This figure reduced to 13 when it was discovered one of the couples had entered into a civil partnership. 9 treatments had a PP form missing (as in this case) and 2 a WP form missing, 1 was undertaken without the WP form including the correct details of the patient’s partner and in 2 cases the forms had been completed after the treatment had been started. N had dealt with all but 1 of these cases and had dealt with a significant number of the cases where there were no parenthood issues. An analysis of the information from the audit did not reveal any underlying systematic reasons for the anomalous cases. For example, the fact that the forms were missing did not necessarily mean they had not been completed at the relevant time. A copy of the audit was sent to the Authority and the relevant personnel were notified within the Trust. This was classified by the Trust as a serious incident.’
[42] (emphasis added)

On the facts of the case the judge, Justice Theis once again, determined that on the balance of probabilities the consent forms had been signed, and hence the legal requirements regarding reciprocal consent for the recognition of X as the legal father had been met (see s.37 HFE Act 2008), but that the forms had ‘subsequently been mislaid by the clinic’ [15]. This did not, in her view, take the treatment provided outside of the licence requirements (another stipulation of the statutory framework), and so she was free to make the declaration that X was indeed the father of Z. The title for this post came from Theis J’s comments: “a restrictive interpretation of s. 37 in these cases makes paternity ‘precarious’. This is because, in reality, the uncertainty is almost entirely outside the control of X and Y. Although s.37 puts the onus on the prospective parents to give the requisite notice, the law does not expect them to know in advance what the law is or to be aware of this particular duty, but places a prior onus on the clinic to inform and counsel them and to provide them with the appropriate forms. Parents have no effective control over the clinic’s compliance with the conditions of its licence or its retention of the necessary consents.” Whether the other ‘parenthood’ issue cases noted above will also come to the Family Court (or indeed, if they are, be reported) remains to be seen.

As an aside, and linked to the ‘Test Case Biographies’ project, especially our work on case narratives, it is also interesting to note how the latter case arose (according to the judge’s finding) due to the lack of care taken by the clinic/professionals involved, yet resulted in family law actions (and ultimately solutions). At one level this is unsurprising: those involved wish to have their uncertain legal position clarified and resolved, and the Family Court is the place to do so in the circumstances. But, there are nevertheless choices being made about characterising cases as either ‘medical’ or ‘family’, closing down one or more narratives in the construction of the case as being of a particular ilk. Cases may then be reported as important in one legal sphere, but absent from or seemingly of minimal importance in another area.

Caroline Jones

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