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Tag Archives: HFEA 2008

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).

 

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Yet more IVF misery due to clinic mistakes with paperwork

 

You write one up, then another one appears.

 

Again the President, again Miss Deidre Fottrell QC, again failure by an IVF clinic to get the paperwork right in an IVF process and meaning that the parents need to go to the High Court to get their legal status as parents sorted out.

 

And again, a hospital trust being pretty unsympathetic and feeble in how they picked up the pieces. (“Oh parents, there are some pieces. Mind how you go. No, we’re not picking them up.”   Actually, that sarky summary seems to be an improvement on the bedside manner employed in this particular case, where a doctor rang them up to tell them that one of them was not the child’s legal parent, and didn’t offer them an appointment or even explain it in more detail in a letter. Cheers for that.)

 

Re N 2016

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1329.html

 

Here’s the mistake itself

 

The issue

  1. Adopting the terminology I have used in previous cases, the problem in the present case is very shortly stated. Before the treatment began, X signed a Form PP. Y did not sign a Form WP. Both of them signed a Form IC, though it was not in precisely the same form as the Forms IC I have had to consider in previous cases. The central issue is this: Did Y give her consent to X becoming the father of her child? In my judgment the answer is clear: she did.
  2. I can take the matter quite shortly. The only material difference between the Form IC used in this case and the other Forms IC which I have previously had to consider, is that X’s declaration was in these terms:
    1. “I am not married to [name] but I acknowledge that she and I are being treated together and that I will take appropriate action to become the legal father of any resulting child.”

Below this there was the following Note:

“NOTE: The centre is not required to obtain a partner’s acknowledgement in order to make the treatment lawful, but … it is advisable in the interests of establishing the legal parenthood of the child.”

  1. Whatever might otherwise be the effect of the words “I will take appropriate action …” there is, on the facts of this case, no problem, because X subsequently signed the Form PP.
  2. In these circumstances, the application of the principles set out in the earlier authorities is simple and the answer is clear: Y gave the relevant consent and X is entitled to the declaration he seeks.

 

And here is what the President said about the emotional strain on the parents and the clinic’s approach

 

 final matter

  1. I have drawn attention in my previous judgments to the devastating impact on parents of being told by their clinic that something has gone ‘wrong’ in relation to the necessary consents (see In re A, para 69, Case G, para 31, and Case I, para 28). I commented (Case G, para 32) that these were situations calling for “empathy, understanding, humanity, compassion and, dare one say it, common decency, never mind sincere and unqualified apology.” In both Case G and Case I, I was very critical of those clinic’s behaviour in this respect. Here again, unhappily, the clinic’s response fell far short of what was required.
  2. In the present case, X and Y were similarly affected as had been the parents in other cases. X, who received the initial telephone call from the clinic, says he “cannot describe the shock I felt.” “It is impossible to describe what it feels like to be told so baldly over the telephone that the child you believed you were the legal parent of was not your legal child.” He was initially unable to contact Y. When she got home “I was beside myself; I was not crying but I was distracted, shaking and unable to function at all.” The impact on him was graphically illustrated by the fact that he was unable to remember either the name or the telephone number of the doctor who had telephoned him. Y remembers the “shocking state” X was in when she got home. In her statement, she voiced her anger that “a doctor should think it reasonable to ring someone up and give them such terrible news over the phone and then not back up the news with an offer of an appointment to discuss the issues in person, an offer of counselling and not to confirm the advice in writing.” By the time there was further communication, about a week later, X and Y had lost all confidence in the clinic and decided to seek their own legal advice.
  3. The contrast with other events, before and after, is poignant and telling. X recalls how “I quite literally burst into tears when I found out [Y] was pregnant.” And the intense emotion, the enormous joy, the immense happiness with which X and Y reacted in court as I announced my decision was the most powerful and moving indication which it is possible to imagine of all they had had to go through.
  4. Unhappily, they did not receive from the clinic the support they were entitled to look for. The clinic declined to meet X and Y, as they wished. The clinic was tardy in confirming, though eventually it did, its unqualified assurance that it would pay their reasonable costs. Even worse, and despite earlier correspondence in which they had sought disclosure, the solicitors X and Y instructed had to make an application to the court before the clinic finally disclosed the relevant records.
  5. In F v M and the Herts and Essex Fertility Centre [2015] EWHC 3601 (Fam), Pauffley J was, as it seems to me with every justification, unsparingly critical of the behaviour of the clinic in that case after their mistakes had been discovered. Referring to guidance issued by the HFEA following the judgment of Cobb J in AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam), [2013] 2 FLR 1357, Pauffley J observed (para 14):
    1. “The underlying message was clear. Clinics should have been supporting and assisting parents. They have an obligation to be open and transparent – most particularly with those whose parenthood was potentially disturbed by administrative incompetence. The parents were (and are) the individuals in most need of advice and assistance; they are entitled to and should have been treated with respect and proper concern.”

I repeat what I said I have said previously (Case G, para 33), I agree with every word of that. Pauffley J went on to criticise in particular the tardiness of the clinic in that case in disclosing the relevant patient files to the parents.

  1. What is required in all these cases, I emphasise, is immediate, full and frank disclosure by the clinic of all the relevant files as soon as they are requested by the parents. Legal professional privilege apart, which can hardly apply to the original medical files, there can be absolutely no justification for refusing such a request.
  2. I have now had the experience of watching too many parents in these cases sitting in court, as they wait, daring to hope for a happy outcome. The strain on them is immense. If the process is delayed because of obstruction on the part of the clinic, that is shocking. The original administrative incompetence in these cases is bad enough; to have it aggravated by subsequent delay, prevarication or obstruction on the part of the clinic merely adds insult to injury. Ms Fottrell, on instructions, tells me that her clients were shocked and upset by the clinic’s conduct and experienced great distress and anguish in the weeks and months following the initial telephone call. I am not surprised. The only mitigation is that when the clinic came to file its evidence, the “person responsible” who made the statement adopted a more seemly and appropriate stance, expressing “sincere apologies” for the clinic’s error and for its effect on X and Y.

 

 

And hooray, this time there were consequences

 

The clinic must pay X and Y’s reasonable costs in full: both the costs of the solicitors they originally instructed and who obtained the order for disclosure of the documents, and the costs of the solicitors they subsequently instructed to bring their substantive claim to court.

IVF and declarations of paternity – major cock-ups in IVF clinics

 

I’m often a bit snippy about the President’s decisions in Human Fertilisation and Embryology Act cases, but I can’t fault him in this one.

 

A and Others (Human Fertilisation and Embryology Act 2008)  2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2602.html

 

This case involved eight cases where couples had made use of very well known and well regarded reputable fertility clinics within England, but as a result of mistakes in the clinics processes, found that not all of them had legal status with their own children and had to apply to Court for a Declaration of Parentage to resolve those issues.

The advocates involved were a roll-call of some of the best minds around, and one can see why.

This judgment relates to a number of cases where much joy but also, sadly, much misery has been caused by the medical brilliance, unhappily allied with the administrative incompetence, of various fertility clinics. The cases I have before me are, there is every reason to fear, only the small tip of a much larger problem.

 

The question of who, in law, is or are the parent(s) of a child born as a result of treatment carried out under this legislation – the issue which confronts me here – is dealt with in Part 2, sections 33-47, of the 2008 Act. It is, as a moment’s reflection will make obvious, a question of the most fundamental gravity and importance. What, after all, to any child, to any parent, never mind to future generations and indeed to society at large, can be more important, emotionally, psychologically, socially and legally, than the answer to the question: Who is my parent? Is this my child?

 

Why has this arisen?

 

  1. The decision of Cobb J on 24 May 2013 in AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam), [2013] 2 FLR 1357, brought to public attention and, more particularly, to the attention of the HFEA, the lamentable shortcomings in a clinic identified only as clinic Z which, in the judge’s view (para 74), had fallen “far short” of its obligations and which (para 88) had failed to comply with the conditions of the licence granted to it by the HFEA.
  2. I must return in due course to explain in more detail the relevant statutory requirements. For the moment I merely indicate two fundamental prerequisites to the acquisition of parenthood by the partner of a woman receiving such treatment. First, consents must be given in writing before the treatment, both by the woman and by her partner. The forms required for this in accordance with directions given by the HFEA are Form WP, to be completed by the woman, and Form PP, to be completed by her partner. Secondly, both the woman and her partner must be given adequate information and offered counselling.
  3. Following Cobb J’s judgment, the HFEA required all 109 licensed clinics to carry out an audit of their records. The alarming outcome was the discovery that no fewer than 51 clinics (46%) had discovered “anomalies” in their records: WP or PP forms absent from the records; WP or PP forms being completed or dated after the treatment had begun; incorrectly completed WP or PP forms (for example, forms not signed, not fully completed, completed by the wrong person or with missing pages); and absence of evidence of any offer of counselling. At the time of the hearing, I did not know how many cases there might be in all, how many families are affected and how many children there are whose parentage may be in issue – so far as I was aware the HFEA had never disclosed the full numbers – but it was clear (see below) that some clinics reported anomalies in more than one case. Since the hearing, the HFEA in a letter dated 1 September 2015 has indicated that there are a further 75 cases.
  4. As it happens, we are best informed about the St Bartholomew’s Hospital Centre for Reproductive Medicine, operated by Barts Health NHS Trust, which I shall refer to as Barts. It was the subject of a judgment given by Theis J on 13 February 2015: X v Y (St Bartholomew’s Hospital Centre for Reproductive Medicine Intervening) [2015] EWFC 13. Moreover, it has been commendably open and frank about its failings (others seem to have been more coy), sharing its findings with the wider medical community as long ago as September 2014 when, at the instigation of the HFEA, they were published on the HFEA’s clinicfocus e-newsletter. Of 184 patients who had undertaken fertility treatment with donor sperm since April 2009, when the 2008 Act was implemented, there were 13 cases (7%) where legal parenthood was in issue.
  5. The picture thus revealed, and I am referring not just to Barts, is alarming and shocking. This is, for very good reason, a medical sector which is subject to detailed statutory regulation and the oversight of a statutory regulator – the HFEA. The lamentable shortcomings in one clinic identified by Cobb J, which now have to be considered in the light of the deeply troubling picture revealed by the HFEA audit and by the facts of the cases before me, are, or should be, matters of great public concern. The picture revealed is one of what I do not shrink from describing as widespread incompetence across the sector on a scale which must raise questions as to the adequacy if not of the HFEA’s regulation then of the extent of its regulatory powers. That the incompetence to which I refer is, as I have already indicated, administrative rather than medical is only slight consolation, given the profound implications of the parenthood which in far too many cases has been thrown into doubt. This is a matter I shall return to at the end of this judgment.

 

All of these people put themselves in the hands of, as the President says, brilliant doctors, who brought them the gift of children, but also had put themselves in the hands of an administrative system upon which the entire notion of whether they were both legally that child’s parents. That administrative system did not always work.

As can be seen in this case, the wrong forms were sometimes used, forms were misplaced or lost.

For both of the couple to be legal parents, it is vital that before the treatment commences that the mother to be signs a form saying that she agrees and consents for the man to be the father in law of any child created, and that the father-to-be signs a form saying that he agrees and consents to be the father in law of any such child. That’s an essential component of the Act.  If there is no such written consent, then the man would not be in law the father.   [I’ve used mother and father for simplicity here – of course it is possible for two women to become parents under such an arrangement]

 

  1. The issues
  2. As will become apparent in due course, the cases before me raise three general issues of principle which it is convenient to address at this point.
  3. The first (which arises in Cases A, B, E, F and H) is whether it is permissible to prove by parol evidence that a Form WP or Form PP which cannot be found was in fact executed in a manner complying with Part 2 of the 2008 Act and whether, if that is permissible, and the finding is made, the fact that the form cannot be found prevents it being a valid consent, as involving a breach by the clinic of its record-keeping obligations. This was the issue decided by Theis J in X v Y (St Bartholomew’s Hospital Centre for Reproductive Medicine Intervening) [2015] EWFC 13. In the light of her decision, with which, as I have said, I respectfully agree, the only question in such a case is a question of fact: Allowing for the fact that it can no longer be found, is it established on the evidence that there was a Form WP or Form PP, as the case may be, which was properly completed and signed before the treatment began?
  4. The second issue (which arises in Cases D and F) is the extent to which errors in a completed Form WP or Form PP can be ‘corrected’, either as a matter of construction or by way of rectification. A similar point (which arises in Cases E and F) is the extent to which errors in a completed Form IC can be ‘corrected’ This is a novel point in this context which, in my judgment, falls to be decided in accordance with long-established and well-recognised principles.
  5. I start with rectification. As a matter of general principle, I can see no reason at all why a Form WP or Form PP should be said to be, of its nature, a document which cannot be rectified. The fact that it is a document required by statute to be in a particular form (that is, “in writing” and “signed by the person giving it”) is, in my judgment, neither here nor there: compare the many cases where rectification has been decreed of conveyancing or trust documents similarly required by various provisions of the Law of Property Act 1925 to be in a particular form. Nor does it matter, in my judgment, that a Form WP or Form PP is used as part of, and, indeed, in order to comply with the requirements of, a statutory scheme. There is, for example, nothing in the language of any of the relevant provisions of Part 2 of the 2008 Act to suggest that rectification is impermissible. Contrast, for example, the well established rule that the Articles of Association of a company will not be rectified because rectification would be inconsistent with the provisions of the Companies Acts: see Scott v Frank F Scott (London) Ltd [1940] Ch 794. So, in my judgment, if the criteria for rectification are otherwise established, a Form WP or a Form PP can be rectified.
  6. Quite apart from the equitable doctrine of rectification, the court can, as a matter of construction, ‘correct’ a mistake if (I put the matter generally, without any detailed exegesis) the mistake is obvious on the face of the document and it is plain what was meant. The reported examples of this are legion and stretch back over the centuries. They include cases of clear misnomer. Again, there is, in my judgment, no possible objection to the court taking this course in relation to a Form WP or a Form PP.
  7. The third issue (which arises in Cases A, C, D, E, F and H) is whether a properly completed Form IC is capable of operating as consent for the purposes of sections 37 and 44 of the 2008 Act

 

If you are wondering what ‘parol evidence’ is, then you are not alone. I wondered that too. Of course, if you all knew, then I was the only person wondering it, and now I feel bad.

 

Parol refers to verbal expressions or words. Verbal evidence, such as the testimony of a witness at trial.

In the context of contracts, deeds, wills, or other writings, parol evidence refers to extraneous evidence such as an oral agreement (a parol contract), or even a written agreement, that is not included in the relevant written document. The parol evidence rule is a principle that preserves the integrity of written documents or agreements by prohibiting the parties from attempting to alter the meaning of the written document through the use of prior and contemporaneous oral or written declarations that are not referenced in the document.  [In short, any other supplementary evidence that would allow a Court to decide that yes, both ‘parents’ did agree that each would be a legal parent to that child]

I am pleased to say that the President did conclude that in each of these cases, there was parol evidence that the couples had all gone into this arrangement fully consenting to the legal parentage of the child, and thus the deficiencies in the forms or the missing status of the forms could be remedied and the Declaration of Parentage made.

 

I conclude, therefore, that, in principle:

i) The court can act on parol evidence to establish that a Form WP or a Form PP which cannot be found was in fact properly completed and signed before the treatment began;

ii) The court can ‘correct’ mistakes in a Form WP or a Form PP either by rectification, where the requirements for that remedy are satisfied, or, where the mistake is obvious on the face of the document, by a process of construction without the need for rectification.

iii) A Form IC, if it is in the form of the Barts Form IC or the MFS Form IC as I have described them above, will, if properly completed and signed before the treatment began, meet the statutory requirements without the need for a Form WP or a Form PP.[2]

iv) It follows from this that the court has the same powers to ‘correct’ a Form IC as it would have to ‘correct’ a Form WP or a Form PP.

 

That, I’m sure came as a relief to the parents involved. I won’t dwell on the nuts and bolts of how the President reached that conclusion, but focus more on the human angle

 

 

  1. The evidence I listened to in these cases was some of the most powerful, the most moving and the most emotionally challenging I have ever heard as a judge. It told of the enormous joy, both for the woman and her partner, to discover, in some cases after a hitherto unsuccessful journey lasting years, that she was pregnant, having taken a pregnancy test that they had scarcely dared to hope might be positive; the immense joy of living through the pregnancy of what both thought of from the outset as “their” child; the intense joy when “their” child was born. In contrast, it told of the devastating emotions – the worry, the confusion, the anger, the misery, the uncertainty, the anguish, sometimes the utter despair – they felt when told that something was wrong about the parental consent forms, that, after all they had been through, all the joy and happiness, W’s partner might not legally be the parent. In one case, where the journey to a successful birth had taken the parents twelve years of what was described as grief and pain, it is hardly surprising to learn that they were “devastated and heartbroken” when told by the clinic that the mother’s partner was not the child’s parent. In another case, the comment was, “it is simply not fair.” The words may be understated, but the raw emotion is apparent. Another called the situation “terrible.” Another spoke of being “extremely distressed”, unable to sleep and “constantly worrying about the future.”
  2. It is testament to the enormous dignity they displayed, even while the case was going on and they did not know what the outcome was going to be, that these parents, despite their justified criticism of how they felt let down by professional people they had trusted and who they had thought, wrongly as it turned out, they could rely upon, did not give voice to greater anger and more strident criticism. It was, if they will permit me to say so, a humbling experience to watch them and hear them give evidence.
  3. A number of common themes emerge from the evidence. In each case, having regard to the evidence before me, both written and oral, I find as a fact that:i) The treatment which led to the birth of the child was embarked upon and carried through jointly and with full knowledge by both the woman (W) and her partner.

    ii) From the outset of that treatment, it was the intention of both W and her partner that her partner would be a legal parent of the child. Each was aware that this was a matter which, legally, required the signing by each of them of consent forms. Each of them believed that they had signed the relevant forms as legally required and, more generally, had done whatever was needed to ensure that they would both be parents.

    iii) From the moment when the pregnancy was confirmed, both W and her partner believed that her partner was the other parent of the child. That remained their belief when the child was born.

    iv) W and her partner, believing that they were entitled to, and acting in complete good faith, registered the birth of their child, as they believed the child to be, showing both of them on the birth certificate as the child’s parents, as they believed themselves to be.

    v) The first they knew that anything was or might be ‘wrong’ was when they were subsequently written to by the clinic.

    vi) The application to the court is wholeheartedly supported by the applicant’s partner or, as the case may be, ex-partner.

    vii) They do not see adoption as being a remotely acceptable remedy. The reasons for this will be obvious to anyone familiar with a number of recent authorities which there is no need for me to refer to. As it was put in the witness box by more than one of these parents, as they thought of themselves, why should I be expected to adopt my own child?

  4. There are two other matters which emerged clearly in the evidence. There is no suggestion that any consent given was not fully informed consent. Nor is there any suggestion of any failure or omission by any of the clinics in relation to the provision of information or counselling.

 

 

 

The President did consider that it was appropriate to name the clinics involved.

 

I can see no reason at all why the clinics should not be identified. So far as concerns IVF Hammersmith Limited, readers of this judgment will appreciate that the case has not yet been heard and that there are as yet no findings. Barts, MFS and BH, on the other hand, each stands exposed as guilty of serious shortcomings, indeed, at least in the case of Barts and MFS, repeated and systemic failings. Why, in the circumstances, should their shortcomings be shielded from public scrutiny or, indeed, public criticism? I can think of no compelling reason. On the contrary, if public condemnation serves to minimise the risk that any future parent is exposed to what these parents have had to suffer, then it is a price well worth paying. I have not identified any of their staff, nor any of the treating clinicians. There is no need, and it would be unfair, to do so, for the failings are systemic and, ultimately, the responsibility of senior management and the HFEA.

 

 

This was not, of course, a public enquiry into the failings of the clinics, or the regulatory body, but the President made some remarks aimed at preventing such problems in the future (though it seems that these 8 cases are likely to be followed by many, many more – at least another 65, that are known to have gone wrong).   The President here has thwarted my usual practice of putting the quotes from the judgment in bold, as he emboldens particular words for emphasis…

 

  1. An afterword
  2. It is not for me to provide guidance as to how these serious and systemic failings could better be prevented. That, after all, is the function of the HFEA and, within each clinic, the responsibility of the individual who is the “person responsible” within the meaning of section 17(1) of the 1990 Act. There are, however, three observations which I am driven to make in the light of the very detailed forensic examination to which these matters have been subjected during the hearing.
  3. The first relates to the material published from time to time by the HFEA in the aftermath of Cobb J’s judgment in AB v CD. I have in mind letters sent out by the Chief Executive of the HFEA dated 10 February 2014 and 1 September 2014, a letter sent out by the Chair of the HFEA dated 3 February 2015 and the April 2015 version of the HFEA’s Consent forms: a guide for clinic staff. While a careful reader who studies these documents with a critical and attentive mind ought not to be left in much doubt about the need to make sure that both Form WP and Form PP are completed properly, and at the right time, I cannot help thinking that it might be better if this FUNDAMENTALLY IMPORTANT requirement, and the potentially DIRE LEGAL CONSEQUENCES of non-compliance, were expressed in more emphatic, indeed stark, language and, in addition, highlighted by appropriate typography. By appropriate typography I mean the use of bold or italic type, CAPITAL letters, or a COMBINATION of all three; the use, for example, of red ink; and the flagging up of key points by the use of ‘warning’ or ‘alert’ symbols. To be fair, some effort has been made to highlight particular points, but I suggest that the process could go further.
  4. The second relates to the imperative need for all clinics to comply, meticulously and all times, with the HFEA’s guidance and directions, including, in particular, in relation to the use of Form WP and Form PP.
  5. The final observation relates to practice within clinics. A completed Form WP and a completed Form PP surely needs to be checked by one person (probably a member of the clinical team) and then re-checked by another person, entirely separate from the clinical team, whose sole function is to go through the document in minute detail and to draw attention to even the slightest non-compliance with the requirements – all this, of course, before the treatment starts. I trust that the parties will not be offended by the comparison, but the approach to checking that the Form WP and the Form PP have been fully and properly completed is surely just as important, and demands just as much care, attention and rigour, as would be demanded in the case of a legal document such as a contract for the sale of land, a conveyance or a will – indeed, in the context of parenthood, even more important.

 

Can a single person apply for a Parental Order in a surrogacy situation?

 

 

Parental orders are governed by section 54 of the Human Fertilisation and Embryology Act 2008. There are a few mandatory requirements set down by the Statute.

 

The application must be made by a couple. The application must be made within 6 months of the birth. At the time the order is made, the child’s home must be with the applicants. There must not be money changing hands save for reasonable expenses.  [I note in this case that some $45,000 dollars changed hands, which on the bare Act would not be permissable, but the Court never seem to have any problem with this any longer]

 

The Courts have, in recent months, been willing to grant exceptions to most of these mandatory stipulations and find their own wriggle-room, notably the President who when deciding whether the wording here:-

 

 

54 (3) the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born.

 

meant that the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born, instead gave this an interpretation of ‘or if not, you know, whenever’    [It was all done very elegantly and intellectually, but there is no good way to actually rewrite section 54(3) following that decision other than by simply striking a line through it, and for me, I don’t think Courts should be striking a line through bits of statute that they find inconvenient]

 

So in this case, the Court was asked to consider whether a parental order could be made on the application of a single person.

 

Re Z (A child : Human Fertilisation and Embryology Act 2008 : Parental Order) 2015

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/73.html

 

Decided by the President, who opens it with such a good paragraph I almost wish he’d left it there

When section 54(1) of the Human Fertilisation and Embryology Act 2008 provides that in certain circumstances the court may make a parental order on the application of “two people”, is it open to the court to make such an order on the application of one person? Can section 54(1) be ‘read down’ in accordance with section 3(1) of the Human Rights Act 1998 so as to enable that to be done? These are the questions raised for decision here. In my judgment the answer to each question is clear: No.

 

{I agree with the President here. I think he was wrong in the previous case, and that there’s only one sensible interpretation of s54(3) and that is that the six months is a cut-off point for making the application (and hence making an order)  }

 

The applicant put up a very grand fight on what was obviously a difficult argument given that the statue expressly says :-

On an application made by two people (the applicants) the court may make an order providing for a child to be treated in law as the child of the applicants

 

The argument is that this is discriminatory against single people, as opposed to people who are in couples, that is in itself prohibited under Article 14 and that this also interfered with the applicant’s article 8 rights, and also adds in Article 12 which provides the right to marry and found a family (suggesting that these are two separate rights) and that as this stipulation is not HRA compatible the Court should ‘read it down’  to interpret the bare Statute in a way that would be HRA compatible. Additionally that there’s a distinction between Parental Orders (which only couples can apply for ) and Adoption Orders (which can be applied for by a single person or a couple).

In part, however, this is problematic because when the HFEA Bill was going through Parliament there’s a specific request made for s54 to be amended to provide for single persons to apply for parental orders and that request was specifically rejected.  (So where the President was able to ‘generously’ assume that Parliament never intended that applicants who waited 18 months before applying should be deprived of the chance just because that’s what the Act says, that ‘generous’ interpretation method can’t fly here – Parliament expressly determined that the Applicants for Parental Orders must be a couple and NOT a single person.

 

  1. Miss Isaacs has argued with skill and pertinacity that section 54(1) can legitimately be ‘read down’. With all respect to her submissions, I am unable to agree.
  2. The principle that only two people – a couple – can apply for a parental order has been a clear and prominent feature of the legislation throughout. Although the concept of who are a couple for this purpose has changed down the years, section 54 of the 2008 Act, like section 30 of the 1990 Act, is clear that one person cannot apply. Section 54(1) could not be clearer, and the contrast in this respect – obvious to any knowledgeable critic – between adoption orders and parental orders, which is a fundamental difference of obvious significance, is both very striking and, in my judgment, very telling. Surely, it betokens a very clear difference of policy which Parliament, for whatever reasons, thought it appropriate to draw both in 1990 and again in 2008. And, as it happens, this is not a matter of mere speculation or surmise, because we know from what the Minister of State said in 2008 that this was seen as a necessary distinction based on what were thought to be important points of principle.
  3. Given that a parental order is a creature of statute, given that this part of the statutory scheme goes to the core question, the crucially important question, of who, for this purpose, can be a parent, this consistent statutory limitation on the ambit of the statutory scheme always has been, and remains, in my judgment, a “fundamental feature”, a “cardinal” or “essential” principle of the legislation, to adopt the language of, respectively, Lord Nicholls and Lord Rodger. Putting the same point the other way round, to construe section 54(1) as Miss Isaacs would have me read it would not be “compatible with the underlying thrust of the legislation”, nor would it “go with the grain of the legislation.” On the contrary, it would be to ignore what is, as it has always been, a key feature of the scheme and scope of the legislation.
  4. Miss Isaacs seeks to persuade me to the other view by submitting (a) that the cardinal principle of the 2008 Act was to make the law fit for the twenty-first century by removing discrimination against different types of families and (b) that the fundamental purpose of section 54 was only ever to provide a regulatory scheme for the making of legal orders to safeguard the welfare of children born through surrogacy arrangements rather than to prevent or restrict eligibility to apply for such orders on the basis of any discriminatory criterion, such as single person status. No doubt these were important ingredients in what went to make up the statutory scheme as Parliament devised it in 2008, but they do not, in my judgment, reflect the whole picture or adequately describe all the key features of the statutory scheme.
  5. In my judgment, this application fails in limine. As a single parent, as a sole applicant, the father cannot bring himself within section 54(1) of the 2008 Act.
  6. I should make clear, for the avoidance of doubt or misunderstanding, that nothing I have said is intended to throw any doubt upon the correctness of the decisions, referred to in paragraph 26 above, holding that it is permissible to ‘read down’ sections 54(3) and 54(4) of the 2008 Act. In my judgment, each of those cases was correctly decided.

 

 

What is left, therefore, is an application that Parliament when enacting section 54 in this way acted in a way that was incompatible with Human Rights. That still stands to be determined.

 

There are of course other legal remedies open to a single person who enters into a surrogacy agreement – for one thing, that person having provided genetic material will have Parental Responsibility for the child.  (whereas in traditional couple commissioning a surrogate baby one will have PR and one won’t, hence the Parental Order ensuring that both of the couple have PR and legal rights about the child).   Old-fashioned Residence  (stupid “Child Arrangement Order” ) would do – assuming that an order was needed at all.

 

The father’s position here is complicated by the arrangement having been made in America, and thus him having no PR in England for this child. It still seems to me that as the child is in England and is habitually resident here, a Child Arrangements Order could be sought, but much brighter people than me have looked at it and said that the only two options are Parental Order or Adoption.

 

Adoption itself is not straightforward – as the man is the biological father of the child, it would have to come within s51 Adoption and Children Act 2002

 

(4)An adoption order may not be made on an application under this section by the mother or the father of the person to be adopted unless the court is satisfied that

(a)the other natural parent is dead or cannot be found,

(b)by virtue of section 28 of the Human Fertilisation and Embryology Act 1990 (c. 37), there is no other parent, or

(c)there is some other reason justifying the child being adopted by the applicant alone,

and, where the court makes an adoption order on such an application, the court must record that it is satisfied as to the fact mentioned in paragraph (a) or (b) or, in the case of paragraph (c), record the reason.

 

As there is a mother of the child and she’s not dead and is capable of being found, it would have to be ground (c), which is pretty widely drawn. It is somewhat unusual to adopt your own child  (it does sometimes happen with step-parent adoptions – where say mum and step-dad adopt the child together)

 

I don’t know whether a declaration of incompatibility will be run here, and the President just concludes with:-

 

I end with this caveat. I have been prepared to assume for the purposes of this judgment the correctness of Miss Isaacs’ submissions based on Articles 8, 12 and 14 of the Convention and of the propositions which she seeks to derive from them. There has been no need for me to come to any concluded view on these matters and it is better that I do not, for these are issues which may yet need to be considered and ruled on if, as may be, the father decides to seek a declaration of incompatibility.