Non-birth mother denied legal parenthood after consent errors

A woman has been removed as the legal parent of twins born following fertility treatment with her former partner, who is the children's genetic mother, after the clinic failed to obtain adequate consent.

The woman, known as AB, separated from her same-sex partner of thirteen years, CD, in June 2011. She sought contact with the twins, who were born in January 2010 following fertility treatment received together by the couple, but CD opposed the application and also sought a declaration from the court that AB was not the twins' legal parent.

The couple began treatment together at a fertility clinic in 2008, where CD received three cycles of intrauterine insemination using donated sperm with the third treatment leading to a successful pregnancy. Although AB was not the genetic mother of the children, she was named as 'legal parent' on the twins' birth certificates. The court heard that AB was involved in the children's upbringing from their birth up until the couple separated.

Before the third cycle was performed, a new law came into force that allowed the partner of a woman receiving fertility treatment, including those in same-sex relationships, to become the legal parent of any resulting children. The couple signed revised consent forms to give effect to AB as a legal parent, but CD contented that the clinic had not complied with the relevant requirements under the HFE, Human Fertilisation and Embryology, Acts 1990 and 2008 so that AB was not, in fact, a legal parent.

Mr Justice Cobb found that the relevant consent forms were not provided before the successful treatment cycle, as required by the law, and declared that AB was not the legal parent of the twins. He heard that CD had downloaded the relevant consent forms from the Internet and had only provided them to the clinic after the successful cycle of treatment had begun.

He went on to say that even if the forms had been submitted on time, because the clinic had not complied with its licence conditions, the consent forms would not have been effective. The clinic had not provided sufficient information to both parties so to enable them to make an informed decision, failed to provide them with an opportunity to receive suitable counselling and failed to maintain adequate records of the treatment and consent processes, the court explained.

The judge also rejected AB's argument that she should be granted legal parenthood on public policy grounds, saying that policy required the law to uphold the strictly regulated regime for obtaining consent in the provision of fertility treatment.

'This judgment discusses the serious implications for the patients, and the children born to those patients, when the legal duties, procedural requirements and regulatory principles are not observed rigorously', Mr Justice Cobb said. 'Had they been so applied [...] a great deal of distress, and this part of this litigation, would almost certainly have been avoided'.

The application for contact by AB has yet to be considered.