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    We’re undergoing IVF treatment: Am I legally a father?

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    Rebecca Patience, trainee solicitor in the family department at Harrison Drury, examines a recent case in which a paperwork error meant the father wasn’t recognised as a legal parent.

    The couple, who at the time were unmarried, embarked on a lengthy process to conceive, culminating years later with the birth of their child. In the normal way, the birth was registered and both parents were named on the child’s birth certificate.

    Following a subsequent audit of the treating clinic, it became apparent that essential paperwork required by law, had not been completed. This failing on the part of the clinic had very serious consequences for the father, as he was not legally recognised as the child’s father.

    What does the law say?

    Under the Human Fertilisation and Embryology Act 2008, before unmarried couples start on the IVF process, they must sign consent forms (“WP” and “PP” forms), to confirm that they agree to each other being the child’s legal parents.

    While the birth mother will automatically be regarded as the child’s parent, it is essential for the prospective father that the forms are completed to meet the “agreed fatherhood conditions”. In this case, no such forms were signed, creating a situation whereby the father was not recognised in the law as a legal parent.

    How was this resolved?

    To remedy the problem caused by the paperwork errors, an application was made to the court for a Declaration of Parentage to regularise the legal position of the father. In this instance, the court looked beyond the fact that the prescribed consent forms were not signed and considered the intention and conduct of the parents during the whole period of the treatment.

    On the facts of the case, the judge found that there was sufficient evidence to infer that the agreed fatherhood conditions were satisfied and the father was declared the legal parent of the child.

    This is a case, where in the judge’s words, “medical brilliance has been allied with administrative incompetence”. However, the couple has had nothing but praise for the medical treatment they received, leading to the birth of a much-loved child.

    What does this mean if I am undergoing IVF with my partner?

    The clinic involved has done everything it can to remedy matters for this family and has taken steps to improve its procedures. The decision in this case has made it clear to parents in a similar position, that the law is willing to look beyond administrative errors, when it can be established that the agreed fatherhood conditions are satisfied.

    In this instance, the courts should be applauded for their pragmatic approach. However, by ensuring that you make sure all paperwork is completed throughout the IVF treatment process, this can be avoided. If in doubt, it is imperative that you seek specialist legal advice.

    This blog is based on a case that was undertaken by John Osborne, head of the family department at Harrison Drury, the law report can be found through reference B v B [2017] EWHC 599 (Fam).

    Harrison Drury have a specialist team offering advice on a full range of family law issues. For more information on issues involving IVF cases, or general family law enquiries, please contact Rebecca Patience on 01772 258 321.


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