Posts Tagged ‘donor conception’

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

mtDNA in Manchester: Exploring mitochondrial donation

In 2012, Genetics, Reproduction on May 16, 2012 at 8:23 am

Last week I participated in a fascinating Interdisciplinary Dialogue event around ‘The genetic family in question’ at the Morgan Centre for the Study of Relationships and Personal Life at Manchester University, organised by Dr Petra Nordqvist. This was linked to her project with Prof. Carol Smart on ‘Relative Strangers’ (the subject of last week’s blog post).

Coincidentally, both Dr Rebecca Dimond (Cardiff) and I offered papers on mitochondrial donation, so we were fortunate to have an entire afternoon session dedicated to considering the policy, law, social and other potential implications raised by these developing techniques – these are currently lawful for research purposes only (ie not lawful for use in the treatment of patients), following a licensing decision by the HFEA in 2005. Rebecca talked us through some insightful aspects of her interviews with family members with mitochondrial conditions, whereas my focus lay with the law and policy issues that may arise if Regulations are introduced to make lawful the use of these techniques in treatment. This area is, of course, subject to considerable attention in 2012 with the Nuffield Council on Bioethics due to publish its Report soon, and the HFEA in conjunction with Sciencewise-ERC due to undertake public dialogue later this year.

Our abstracts are below … a further post will follow on the morning’s session soon.

Relatively (im)material? mtDNA and genetic relatedness in legal discourse – Dr Caroline Jones

Mitochondrial donation poses the latest regulatory challenge for policy-makers in the context of assisted conception. In 2012 the Nuffield Council on Bioethics and the Human Fertilisation and Embryology Authority are consulting on ethical issues raised by this technique; including the potential relationships created by the use of three parties’ genetic material and the associated ramifications (eg whether or not there is a need to establish records of such donations and, if so, to whom should information be provided?) Hence, this technique poses both novel and familiar questions about ‘the genetic family’. This paper will explore the construction of the relative (in)significance of mitochondrial DNA in recent parliamentary debates, and current policy and consultation documents, in order to reflect on the ways in which the role of genetic connections – or lack thereof – are mediated in legal discourse and policy formation.

Who is the ‘third parent’? Mitochondria donation and implications for identity and kinship – Dr Rebecca Dimond

What is the link between mitochondrial DNA and a person’s identity?  What relationship does a woman have to a child conceived using her donated mitochondria?  These are key questions that the Nuffield Council on Bioethics have asked in exploring the ethical issues surrounding emerging techniques to prevent inherited mitochondrial disorders. There is currently no cure for mitochondrial disease but experimental reproductive technologies have now been developed which can allow women with mitochondrial disease to have children free from the disease. The technique involves replacing faulty mitochondria during an IVF cycle with healthy mitochondria from a donated egg. As the donated mitochondria (which contain a small number of genes) would be inherited by future generations, this technique requires a change in the law in order for it to be offered to patients and this has prompted calls for evidence by the Nuffield Council and HFEA. By drawing on interviews with patients with mitochondrial disease and media representations of the ‘three parent embryo’, in this presentation I consider how these techniques raise fundamental questions of identity and kinship.

Donor conception: interesting times

In 2012, Genetics, News, Reproduction on April 10, 2012 at 10:26 am

In the late 1990s the wisdom of choosing sperm donation/donor conception as the focus of my research was something that I was questioned about more than once. It was seen as a ‘dated’ subject; after all it wasn’t about the latest technological developments or indicative of where science or policy might go next. But, those concerns fell by the wayside in the early 2000s when this field hit centre stage once again, and it shows no signs of letting up a decade or so later. A cursory glance at the news in the last week or so gives rise to a range of stories:

  • From the ‘world first’ recommendation, in Australia, from the Victorian Parliament’s Law Reform Committee that all donor conceived people should have access to donor information, and where needed anonymity should be revoked retrospectively; further commentary and links are available on Bionews.


  • ‘Children of sperm donors should be told’ read one headline in The Independent (02 April, 2012; ie they should be informed about the mode of their conception – it does not seem that those interviewed were asked questions about the donor’s identity per se). 


  • The Nuffield Council on Bioethics is seeking written submissions of evidence by 15 May 2012 on ‘information disclosure’.



  • And last, but not least, ‘British sperm donor “fathered 600 children” was the lead headline for the Sunday Times (08 April, 2012); on 10 April 2012 this was ranked the ‘most read’ article in The Sunday Times on-line. This story later appeared in The Telegraph: ‘British man “fathered 600 children” at own fertility clinic’.  

Sometimes the ‘old’ questions or supposedly ‘settled’ issues give rise to the most interesting conundrums, in health care policy and law and beyond.

Donor matching: (not) in the red?

In 2011, Genetics, Reproduction on September 27, 2011 at 10:39 am

News broke last week that red-haired sperm donors were being turned away by Cryos, a Danish sperm bank, due to their currently high ‘stock levels’ and lower demand than for donors with other characteristics. The Telegraph quoted Cryos’ director, Oleu Schou, as stating that Ireland provided ‘the only reliable demand’ for red-haired donors. In contrast, an article in the Irish Times indicated that Mr Schou had stated that Ireland was actually in the top 3 of countries with the highest demand for red-haired donors, placed behind Denmark and Germany.

But, irrespective of whether or not Ireland is the place in Europe where red-haired donors are especially in demand, the story draws attention to a long-established approach to donor conception; that is, ‘donor matching’, where the characteristics of donors are (often, but  not always) matched to the characteristics of the intending parent(s). Whilst there are no guarantees that using the gametes from a donor with similar characteristics will necessarily result in a child that will physically ‘match’ the intending parent(s), which clinics should discuss with patients; difficulties can arise where gamete donors with the desired characteristics cannot be found – the example given in the Telegraph article is of the scarcity of Indian sperm donors.

While the practice of donor matching began in the context of the provision of donor sperm to married couples, in order that they might pass as ‘the family’ at a time where secrecy and anonymity in this field were both promoted, the desirability of donor matching is not restricted to those in heterosexual relationships – Caroline Jones has previously explored the significance of implied cultural and racial bio-genetic links in families with two mothers, drawing on small scale empricial research – see Sexualities (2005) Vol.8(2): 221-237.


Other Links



http://www.parentpages.co.uk/family-2/families/no-sex-please-were-danish linking to: http://www.dailymail.co.uk/news/article-2038499/Sperm-bank-Cryos-turns-redheads-No-sex-Danish.html

Reprieve for UK Donor Link

In Genetics, News, Reproduction on September 23, 2011 at 8:00 am

UK Donor Link, the voluntary contact register set up for persons conceived with donor gametes, and those who had donated gametes pre-August 1991, faced closure due to a lack of funding, but this month was granted a temporary reprieve by the Government. It is now secure to continue its work until March 2012, and further funding options will be explored in the interim period. 

UK Donor Link was established in 2004 to enable donor conceived individuals, and gamete donors, and half-siblings, to exchange information and – where parties wish to – to have contact with one another. This is only for adults, who were conceived or who donated gametes pre August 1991 (when the HFE Authority was established under the auspices of the Human Fertilisation and Embryology Act 1990).

The potential impact of the closure of UK Donor Link was highlighted by the screening of the BBC documentary ‘Donor Mum: the children I’ve never met’ (30 August) – as at a crucial time of increased public awareness of their activities, due to the lack of funding they could not accept any new registrations following the programme, leaving donors and donor conceived persons without a formal avenue to exchange information and/or to contact each other, where desired. Fortunately registrations were re-opened on 15 September 2011, but the future of the organisation arguably remains fragile until a more permanent basis of funding can be established.