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(Family Division, Cobb J, 24 May 2013)
The women, AB and CD, conceived twin boys during their relationship, via assisted reproduction at a licensed fertility clinic. When they first approached the clinic for a consultation the were informed that at that time, August 2008, embarking on treatment whereby CD would carry and give birth to the child, would not confer parental status on AB in the eyes of the law.
Prior to the commencement of treatment AB signed a statement which expressed that the couple were being treated together, although they were not married, but that she intended to have parental rights. The first two cycles of treatment were unsuccessful and prior to the couple embarking on a third cycle Part II of the HFEA 2008 came into force concerning the new legal parenthood arrangements. When the couple attended the clinic for the third cycle they signed a consent form purporting to give their bilateral agreement to AB becoming a legal parent.
The third round was successful and CD gave birth to the twin boys. Their birth was registered with CD being recorded as ‘mother' and AB as ‘parent' by the registrar.
When the children were 17 months old the women separated and AB sought contact. CD contested that application and sought a declaration that AB was not a parent of the children.
On the basis of the evidence it was likely that the consent form was one that CD had printed from the internet after being provided with a link on an internet forum and once it had been signed the couple handed it to staff at the clinic on the second day they attended for the third round of treatment. Therefore, that consent was ineffective to grant parentage status to AB as indicated by the law and guidance surrounding the HFEA 1990 and 2008.
Furthermore, the clinic had acted in breach of its license conditions in: the failure to provide sufficient information to the couple in respect of the parentage issue in order for them to provide truly informed consent; the failure to provide the couple with an opportunity to receive proper counselling about the steps prior to treatment, and; kept inadequate records of the treatment and delivery of the consent forms.
Applying the law the judge was constrained to find that the legal requirements under the HFEA 2008 to enable AB to become a parent of the children had not been complied with. In order to comply with the requirement established in Re R for the HFEA 2008 to be construed and applied in a way that created as much certainty as possible a declaration pursuant to s 55A of the Family Law Act 1986 would be granted.
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