Yet another fertility clinic paperwork error case

Readers may be aware of the ongoing litigation caused because fertility clinics had not properly ensured that their paperwork reflected the wishes and intentions of the adults involved that they would both wish to be legal parents to any child the clinic helped them conceive, very often this being just a failure to ensure that ticks were placed in each box or that the forms complied with what was required of them. This has led to a lot of human misery, where people who believed that they were a legal parent of a child were told, often years later, that they were not, and had to go through a court process to put that right. The last one I wrote about, the parents had had to adopt their own biological child and spoke in very moving terms about how awful that was.

This one is even worse, I think.

Here is how the President begins

Jefferies v BMI Healthcare Ltd (Human Fertilisation And Embryology) [2016] EWHC 2493 (Fam) (12 October 2016)

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2493.html

• When he was 19 years old, Clive Jefferies, then in the Royal Army Medical Corps, served his country in the Falklands War. On 8 June 1982 he was with the Welsh Guards on RFA Sir Galahad when it was bombed and destroyed by the Argentinian Air Force at Bluff Cove. On that day the fates smiled at him. Minutes before the attack he had been in a part of the ship where the first bomb exploded, killing many men. In the aftermath of the bombing he saved the life of a comrade who was in difficulties in the water. At his funeral, 32 years later, his commanding officer described his conduct on that fateful day as magnificent.
• Returning to civvy street in 1987, Clive served the community as a nurse and midwife. He and his wife, the claimant Samantha Jefferies, met in 1999, moved in together in 2002 and married in 2007. Their ambition to have a family was assisted by the Sussex Downs Fertility Centre, a clinic operated by the First Interested Party, BMI Healthcare Limited, and regulated by the Second Interested Party, the Human Fertilisation and Embryology Authority (HFEA).
• Neither of the first two cycles of IVF treatment was successful. On 1 April 2014 they attended the clinic to plan a third cycle of treatment, using three embryos, created from Samantha’s eggs and Clive’s sperm, which had been frozen on 11 August 2013. It was not to be. Fate struck. On 19 April 2014, suddenly and unexpectedly, Clive collapsed and died of a brain haemorrhage, while at home with Samantha. He was only 51 years old. He had previously been fit and healthy. It came as an appalling and terrible shock to Samantha. She was devastated.

With that history, the very last thing anyone would want is for there to be a row about how long the frozen embryos, the only chance for Samantha to have the baby fathered by Clive that they had both wanted, could be stored for and whether as a result of a flaw in paperwork for there to be a suggestion that they should be destroyed.

But that is what happened.

To their credit (and no doubt just reading those three paragraphs above would have made this an easy decision)  the clinic indicated that it did not want to take any active role in the proceedings and did not try to stand in the way of Samantha’s application for a declaration that despite flaws in the paperwork the embryos could continue to be stored, which she duly got.

These cases are causing misery, suffering, anxiety and a great deal of expense and Court time. It would be nice if the Government produced some legislation which provided for an amnesty and blanket declarations that where the fault lies with the paperwork and not the adults commissioning the fertility clinic, the wishes of those adults should prevail and avoid the need for Courts. It’s not an easy bit of legislation to draft, but I hope someone takes up that challenge on behalf of all of these parents who are going through turbulent and miserable times (and sometimes as here when life has already dealt that person such a challenging hand).