The courtroom and the clinic

This week's BioNews reports on a case in the English Court of Appeal which ruled that a man could not be regarded as legal father to a child born of IVF when the embryos were transferred to his partner at a time when they were no longer a couple. Our first story gives the detail of the matter, but suffice it to say here that the reason the case went to court is that the woman in question led the clinic to believe that they were still a couple in order that she could proceed with treatment alone.

The judgement turned on an interpretation of a phrase in the legislation: 'in the course of treatment services provided for her and a man together'. If an unmarried woman and her male partner are treated together, he is the legal father of any child resulting from treatment. However, at what point does 'treated together' apply? When the embryos are created or when the embryos are transferred to the woman's body?

In normal IVF, these events aren't usually separated by more than a few days. But when frozen embryo storage is used, the time between the creation of the embryos and the transfer of those embryos can be anything up to 10 years. This obviously creates the possibility that couples who put embryos into storage are no longer a couple when that storage period comes to an end.

This case points to an interesting conflict between the law and clinical practice because, according to the Court of Appeal, if a couple aren't together at the time of embryo transfer, the man cannot be regarded as the legal father of any child born as a result of treatment. However, since a man is not medically required to be present at embryo transfer (and if the woman fails to inform the clinic of their separation), the clinic could - and did in this instance - reasonably assume that the couple were still together.

Should something be done to ensure that this kind of deception doesn't happen again? Should couples have to prove that they are still together at the time of embryo transfer? It seems rather draconian to make couples prove that they are together or even to insist that the man is present at this stage of the treatment process. The IVF process is stressful and complicated enough without adding further requirements for both clinic staff and patients to fulfil. Clinical practice shouldn't be based on rare instances of deception like these, but rather on the assumption that people are being truthful. Where deception has caused the problem, the courts might be the only place where the legal issues can be resolved.