If you are an unmarried couple conceiving with donor sperm at a fertility clinic in the UK, then you rely on your clinic both to provide good medical care and to ensure you will both become the legal parents of your child. The Human Fertilisation and Embryology Act 2008 creates a process which must be followed at a fertility clinic in order for a non-biological father or non-birth mother through sperm donation to become his or her child’s legal father or parent.
The process must be completed correctly before conception takes place, so that the requirements are met for legal parenthood to be established at the point of conception. If the process is completed correctly, an unmarried non-biological father will be the legal father of his child and an unmarried non-birth mother will be the second legal parent, and can be registered on the birth certificate. Find out more about how the law works if the parent being nominated is trans.
The key elements of this process are:
Receiving counselling and proper information about the consent forms; and
The birth mother (or person giving birth, if trans) completing and signing HFEA Form WP to nominate her partner as the father or other parent,
The intended father or non-birth mother completing and signing HFEA Form PP to agree to become the father or the other parent.
The front-line nursing staff/clinicians who work at fertility clinics are responsible for ensuring this process is followed correctly, but the forms which confer legal parenthood are just one small part of an enormous volume of paperwork which patients need to sign, and in practice the process does not always run smoothly. This can have enormous and lifelong significance for parents and their children in terms of status, the child’s birth certificate, financial and parental responsibility, inheritance rights, nationality, pension rights and, most importantly, the child’s identity. In a nutshell, dealing with legal parenthood correctly ensures that the family unit is and feels legally secure and the non-birth parent has a lifelong connection with their child which will continue long beyond the day they turn 18 and become an adult.
Sometimes, mistakes are made. Following an HFEA audit in 2013, shockingly 42% of the UK's fertility clinics reported that they had discovered cases in which there had been procedural or paperwork errors meaning that the father or second parent's legal status was potentially questionable. There were a variety of errors which ranged from missing forms to missing signatures. A group of affected parents applied to the UK family court for help.
In a case known as the ‘Alphabet case’ (2015) the President of the Family Division, using a certain amount of legal gymnastics, was able to find a way of curing the mistakes retrospectively and to make declarations that the non-biological parents were the legal parents of their children.
Over 30 further cases have now been heard in which declarations of parentage have been made to resolve any uncertainty. In Re AD, we represented a group of parents seeking to resolve relatively minor deficiencies with their parenthood forms, and we asked the President to set out a procedure for managing these cases as sensitively and efficiently as possible. The judgment in this case has meant that, for many new situations going forward, the court process can take place more quickly and often without the parents needing to attend court unless they wish to do so.
Don’t panic. There should be a way of getting things resolved, and the process need not be complex or difficult from your perspective. If you are notified by your clinic that there is a potential problem with your legal parenthood, the first step is to get some legal advice about whether you need to make a court application. If you do, your fertility clinic should be supportive and help you get things resolved (and cover the cost).
Get in touch with us and we can explain the way forward. After an initial discussion with you, we would usually review the case properly to advise your patients on whether there is an issue and, if there is, explain what needs to be done. We always work collaboratively with everyone to get things resolved as quickly and cost-efficiently as possible.
Have we answered your question? Would you like advice on your personal circumstances?
Email us at email@example.com or call on 020 3701 5915 and we will explain how we can help.