10 February 2014
Dear Colleague,
Ensuring consent to legal parenthood is properly taken
As you know, from 6 April 2009, the partners of women treated with donor gametes or embryos, where the couple is neither married nor in a civil partnership, must give their consent in order to become the legal parent of any child born. In the August edition of Clinic Focus, we alerted you to a recent court case in which consent was not properly taken. Since then, we have found problems with consent to legal parenthood at another of our clinics. I am writing to you in the light of these developments to request that you take action in this area.
Why is consent to parenthood important?
In order for the partner in such couples to be the legal parent of any child born, licensed clinics must ensure that a number of legal requirements are met. If they are not met, the partner may not be legally recognised as the parent of the children born. Needless to say, this is a very serious matter for the families affected.
The importance of adhering to these requirements was made clear in a recent High Court case involving a same sex couple, where the partner of the woman treated with donor gametes was declared not to be the legal parent of children born to her partner. Last August, we issued a Clinic Focus article which highlighted the findings of this case and advised that you should take immediate action to ensure that your procedures for taking informed consent to parenthood are compliant with the Human Fertilisation and Embryology Act 1990 (as amended) and the Human Fertilisation and Embryology Act 2008.
Problems with legal parenthood consents
Following a routine inspection of a licensed clinic in 2013, we found discrepancies in how consent to legal parenthood was obtained and processed. The clinic involved carried out a full audit of these consents and identified 14 cases in which there were deficiencies in the obtaining and recording of consent to parenthood. In these cases the partners of the women treated may not be the legal parents. This clinic will contact the affected patients imminently to inform them and to give them advice and support about their options.
The court case last year showed that where legal parenthood is challenged in court, a person can lose their right to legal parenthood if provisions of the Act have not been followed. However, it should be noted that a deficiency in the consent process does not mean that a person will automatically be deprived of their status as legal parent and the outcome of any particular case will be highly dependent upon the individual circumstances.
If there are similar cases in your own clinic, in which there are deficiencies in the consent forms or the process by which consent was obtained, you should inform the affected patients and their partners.
What you should do
Given the problems that have come to light in one particular clinic, coupled with the High Court case outlined above, we are concerned that there may be other cases where legal parenthood consent was not correctly obtained and recorded.
Accordingly, we require all licensed clinics to carry out an audit of the records of patients who received treatment using donor sperm or embryos on or after 6 April 2009, who were neither married nor in a civil partnership. The audit should be completed within three months of receipt of this letter.
When you have completed your audit please notify your inspector. Where anomalies are identified, you should discuss with your inspector what further action, if any, should be taken. We will look for evidence of the audit having been completed in the course of future inspections. Where the audit has not been completed, this will be considered as a critical non-compliance. Details of the audit methodology can be found in the annex, along with answers to questions which affected patients might ask.
Given that the clinic mentioned above will shortly be contacting affected patients, you should be prepared for enquiries from patients who are concerned about their own legal parenthood status.
Peter Thompson
Chief Executive
Human Fertilisation and Embryology Authority
Annex A: Legal parenthood audit – guidance for centres
Audit Scope
The audit should include all patients who have received treatment, from 6 April 2009, using donor sperm or embryos (including embryos created with donor sperm or donor embryos) and:
- were treated with a partner to whom they were not married or in a civil partnership or where the status of the relationship is not known;
and - treatment either resulted in a current on-going pregnancy or live birth or where the outcome is unknown.
Audit methodology
For each patient meeting the above criteria, you should document:
- Whether the WP form is present and has been completed accurately. Document the date that the WP form was signed;
- Whether the PP form is present and has been completed accurately. Document the date that the PP form was signed;
- The date that the donor insemination/embryo transfer resulting in an on-going pregnancy/live birth/unknown outcome was performed and confirm that the consent forms were completed before this treatment date. Where a series of inseminations have taken place, this date should be that of the first insemination where it is not known which insemination resulted in the pregnancy;
- Whether the consent was withdrawn or varied using a WC form since the WP/PP forms were completed. Document the date of withdrawal / variation of consent and the date that this was communicated to the relevant parties;
- Whether there is evidence that counselling was offered prior to obtaining consent to legal parenthood and whether the offer was made to all relevant parties;
- if there is no consent to parenthood, that there is evidence that the patients were provided with information about this option but declined to complete the consents.
This audit should be completed within 3 months of receipt of this notification. When you have completed your audit please notify your inspector. If you anticipate difficulty in meeting this deadline, you should discuss this with your inspector as soon as possible.
Audit reporting
You should document the audit findings as described above. Your inspector will request a copy of the audit at your next inspection.
Any of the following audit findings should be reported to your inspector immediately. Depending on the issues raised, you may then be asked to also report the findings through the HFEA incident reporting system:
- cases where the consent forms were signed after the treatment date;
- cases where the consent forms were signed but consent was subsequently withdrawn by the nominated second parent before the treatment date but there is no evidence that the patient was informed before treatment took place;
- cases where the consent forms were signed but consent was subsequently withdrawn by the patient but there is no evidence that the nominated second parent was informed of this;
- cases where a PP and/or WP form are absent but there is not a clear record in the patient notes that legal parenthood was discussed with both the patient and their partner and that they both chose not to consent;
- inaccuracies and/or inconsistencies in the consent forms;
- cases where there is not a clear record in the patient notes that both the patient and the intended second parent were given a suitable opportunity to receive proper counselling about the implications of giving consent to parenthood;
- any other anomalies noted during the course of the audit that give concern that consent may not be effective.
Annex B: Consent to legal parenthood: your questions answered
You may have heard about a recent High Court case involving a same-sex couple in which the non-birth partner was declared not to be the legal parent of children born following treatment with donor sperm. Below are answers to questions that you might have about this case.
Reading about court cases that touch on situations similar to your own can cause real worry. However, it is very important to emphasise that every case that reaches the courts is decided upon its own very particular facts. In this particular case, the relationship had sadly broken down after the children had been born. The ex-partner sought to obtain a court order for contact with the children. The birth mother applied for a declaration that a defect in the parenthood consent process at the time of treatment meant that her ex-partner was not the legal parent of her children.
It is also worth noting that the court considered the issues relating to parenthood and to contact with the children entirely independently of one another. Just because the ex-partner was declared not to be the legal parent did not mean that she would not be awarded contact with the children.
I am in a heterosexual relationship and am not married to my partner. She received treatment with donor sperm/embryos on or after 6 April 2009. What does this mean for us?
or
I am in a same sex-relationship and am not in a civil partnership with my partner. She received treatment with donor sperm/embryos on or after 6 April 2009. What does this mean for us?
If you give birth to a child (the ‘birth mother’) you are the legal mother and automatically have parental responsibility for the child.
If you are the ‘non-birth partner’ and you are married to the mother or in a civil partnership with her, you are the legal parent of the child (unless you did not consent to the treatment of your spouse or civil partner) and automatically have parental responsibility for the child.
Since 6 April 2009 it has been possible for the non-birth partner in a couple who are not married or in a civil partnership to be the legal parent of a child born as a result of licensed fertility treatment in the UK, provided certain criteria are fulfilled.
If both you and your partner signed the relevant HFEA consent forms (WP and PP consent to parenthood forms) before the treatment took place, you will be the father or, in a same-sex relationship, the second female parent of the child.
Unlike the birth mother, you would not automatically have obtained parental responsibility for the child. You could have obtained parental responsibility by being named on the birth certificate, or by means of a parental responsibility agreement or order.
You and your partner should have been given the opportunity to receive counselling on the implications of consenting to your partner becoming the legal parent of the child born as a result of treatment. You both should also have been provided with information about legal parentage prior to signing these consent forms. If you believe you were not offered counselling or provided with information, then this is something to discuss with your treating clinic.
I am not married/not in a civil partnership with my partner and we had treatment with donor sperm/embryos before 6 April 2009. What does this mean for us?
If your fertility treatment took place before 6 April 2009, your partner could not have become the legal parent of your child unless he or she went on to adopt the child. The parenthood laws which came into effect in April 2009 cannot be applied retrospectively.
You, as birth mother, are of course the child’s legal mother, with automatic parental responsibility, regardless of the date of treatment.
I was married or in a civil partnership at the time of treatment. What does this mean for me and my husband or civil partner?
If you were married or in a civil partnership at the time of treatment, your husband or civil partner will be the legal parent of the child with automatic parental responsibility for the child, provided they did not object to your treatment.
The recent court case applied to a female couple who were not in a civil partnership at the time of treatment and where the parenthood consent forms were not completed prior to treatment:
I am in a heterosexual relationship and am not married to my partner. She received treatment with donor sperm/embryos on or after 6 April 2009. I cannot remember signing any parenthood consent forms – what should I do?
or
I am in a same sex-relationship and am not in a civil partnership with my partner. She received treatment with donor sperm/embryos on or after 6 April 2009. I cannot remember signing any parenthood consent forms – what should I do?
It is likely you signed the correct consent forms before your treatment took place. However, if you have any doubts over whether the correct consent forms were completed, you should contact your fertility clinic who will have any forms you and your partner signed in your records.
If the parenthood consent forms were not completed, your clinic will help and advise in the first instance, but you should also consider seeking your own legal advice. There is a possibility that if the forms were not completed and/or if you were not given an opportunity to have counselling before completing the consent forms, your parenthood status, as the non-birth mother, could be challenged.
The specific case last year showed that where legal parenthood is challenged in court, after a relationship breaks down, a person can lose their right to legal parenthood if the legal requirements were not complied with at the time of treatment. However, it is very important to emphasise that every case that reaches the courts is decided upon its own very particular facts. It is not possible to predict exactly what decision might be taken in other cases.
We recommend that if there is any doubt about the validity of legal parenthood then you should contact your clinic and consider seeking your own legal advice.
The Law Society offers help in finding a solicitor who specialises in family law at: http://www.lawsociety.org.uk/find-a-solicitor/
If the consent forms were incorrectly completed or not completed at all, does this mean that one or both of us may not be the legal parent(s) of our child?
If you gave birth to the child, you are the legal parent of that child and automatically have parental responsibility.
If you are the non-birth partner and you were not married to or in a civil partnership with the birth mother at the time of treatment (or subsequently), but you were named on the child’s birth certificate as the father or parent, then if it transpires that the
consent forms were not completed properly or you were not offered counselling before deciding to complete the forms, this does not necessarily mean that you will lose your right to legal parenthood.
The specific case last year showed that where legal parenthood is challenged in court, a person can lose their status as legal parent if the requirements of the law were not complied with. However, it is very important to emphasise that every case that reaches the courts is decided upon its own very particular facts. It is not possible to predict exactly what decision might be taken in other cases.
We recommend that if there is any doubt about the validity of legal parenthood then you should contact your clinic and consider seeking your own legal advice.
The Law Society offers help in finding a solicitor who specialises in family law at: http://www.lawsociety.org.uk/find-a-solicitor/
If it is found that either I, as the non-birth partner, am not the legal parent of our child, how can I become the legal parent?
If you are found not to be the legal parent, the only way of obtaining legal parenthood is by adopting your child. We recommend that you seek your own legal advice on this point. Your advisor will be able to talk through your options.
General questions
What does legal parenthood mean?
Legal parenthood gives a lifelong connection between a parent and a child, and affects things like nationality, inheritance and financial responsibility.
If you are neither married to nor in a civil partnership with the birth mother and she had treatment using donor sperm or embryos on or after 6 April 2009, you can both be the child’s legal parents if you completed the necessary consent forms properly.
What does parental responsibility mean?
A person with parental responsibility has responsibility for involvement in the key day-to-day decisions about the care of the child: for example they can give consent to the child’s medical treatment and make decisions about their education and religion. The woman who gives birth to the child automatically has parental responsibility for the child, as does her husband or civil partner.
Where the mother is not married to her partner nor in a civil partnership with them, a person who is treated as the father or second female parent of the child because the requisite consent forms have been correctly completed can obtain parental responsibility by being named on the child’s birth certificate, by entering into a parental responsibility order with the child’s mother or by a parental responsibility order being made by the court.
Page last updated: 10 February 2014