The Human Fertilisation and Embryology Act 2008 (Cases A, B, C, D, E, F, G and H)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 11 September 2015 |
| Neutral Citation | [2015] EWHC 2602 (Fam) |
| Docket Number | Case numbers omitted |
| Court | Family Division |
| Date | 11 September 2015 |
[2015] EWHC 2602 (Fam)
Sir James Munby President Of The Family Division
Case numbers omitted
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Miss Deirdre Fottrell QC and Miss Lucy Sprinz (instructed by Goodman Ray) for the applicants in Cases A, B, C, D, E and G
Mr James Turner QC and Miss Helen Williams (instructed by Osbornes Solicitors LLP) for the applicant in Case F and (instructed by Hughmans) for the applicants in Case H
Miss Janet Bazley QC and Miss Sharon Segal (instructed by Russell-Cooke LLP) for the children's guardian
Miss Samantha Broadfoot (instructed by the Government Legal Department) for the Secretary of State for Health
Miss Dorothea Gartland (instructed by Bevan Brittan) for Barts Health NHS Trust in Cases A, F and H
Mr Martin Kingerley (instructed by Mills & Reeve LLP) for Bourn Hall Clinic in Case B
Mr Andrew Powell (instructed by Myerson) for Manchester Fertility Services Limited in Cases C, D and E
Miss Sarah Tyler (instructed by Hempsons) for IVF Hammersmith Limited in Case G
Hearing dates: 13–17, 20–21 July 2015
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
This judgment was handed down in open court
Sir James Munby, President of the Family Division :
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 background
The creation, storage and implantation of human embryos is controlled and regulated by the complex provisions of the Human Fertilisation and Embryology Act 1990, as amended by the equally complex provisions of Part 1 of the Human Fertilisation and Embryology Act 2008. The statutory regulator is the Human Fertilisation and Embryology Authority, which I shall refer to as the HFEA.
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?
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.
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.
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.
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.
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.
The litigation
I am concerned with eight cases, A, B, C, D, E, F, G and H, all brought to light following the HFEA audit and each raising the question of whether there were valid consents as required by Part 2 of the 2008 Act. They are but a small fraction of the many cases identified by the audit. For reasons which I need not go into here, Case G, which related to treatment at the IVF Hammersmith Limited clinic, has been adjourned for hearing on a future date. I say no more about it.
Of the seven other cases, five (Cases A, B, C, E, H) relate to a couple consisting of a man and a woman, two (Cases D, F) relate to a couple consisting of two women. Three cases (Cases A, F, H) arise out of treatment at Barts, three cases (Cases C, D, E) from treatment at the Manchester Fertility Service clinic (MFS) and one case (Case B) from treatment at the Bourn Hall clinic (BH).
In each case the relief sought is a declaration of parentage in accordance with section 55A of the Family Law Act 1986, that is, a declaration that the applicant (in Case F, the respondent) is the child's parent. In no case is the grant of that relief challenged by the other partner, by the child's guardian or by the relevant clinic.
It is elementary that a declaration cannot be granted by consent or by default. There must be a proper examination by the court of the relevant facts, assessed in the light of the applicable law, before a judge can be satisfied, as he must be if the relief sought is to be granted, that the claim for the declaration is indeed made out: see, for example, Wallersteiner v Moir [1974] 1 WLR 991.
I have been greatly assisted in that task by the submissions I have had, both written and oral, from Miss Deirdre Fottrell QC and Miss Lucy Sprinz for the applicants in Cases A, B, C, D, E and G, from Mr James Turner QC and Miss Helen Williams for the applicants in Cases F and H, from Miss Janet Bazley QC and Miss Sharon Segal for the children's guardian, from Miss Dorothea Gartland for Barts in Cases A, F and H, from Mr Martin Kingerley for BH in Case B, from Mr Andrew Powell for MFS in Cases C, D and E, and from Miss Samantha Broadfoot for the Secretary of State for Health. The hearing was lengthy and the process rigorous.
The statutory scheme
I need not deal at this stage with the regulatory scheme under the 1990 Act. I go straight to the relevant provisions of Part 2 of the 2008 Act.
Part 2 of the 2008 Act (sections 33–58) is entitled Parenthood in Cases Involving Assisted Reproduction. Subject to various matters which are not material for present purposes, section 33(1) provides as follows:
"The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child."
Section 34(1) provides that:
"Sections 35 to 47 apply, in the case of a child who is being or has been carried by a woman (referred to in those sections as "W") as a result of the placing in her of an embryo or of sperm and eggs or her...
To continue reading
Request your trial
-
The Human Fertilisation and Embryology Act 2008 (Case M)
...down in open court Sir James Munby, President of the Family Division: 1 In In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam), [2016] 1 WLR 1325, and then again in Re the Human Fertilisation and Embryology Act 2008 ( CaseG) [2016] EWHC 729 (Fam), Re the Human F......
-
B v B and Another
...was resolved by the President in In the matter of the Human Fertilisation and Embryology Act 2008 ( CasesA, B, C, D, E, F, G and H) [2015] EWHC 2602 (Fam). I respectfully agree with his conclusions, summarised at paragraph 63: 63. I conclude, therefore, that, in principle: i) The court can......
-
Re TY (preliminaries to intercountry adoption)
...to whether the formal requirements could effectively be dispensed with (see [37], [38], below). (5) Applying Re A & others (HFEA 2008)[2015] EWHC 2602 (Fam), the court’s opportunity to consider the aunt’s possible adoption of the young man, particularly where that had been granted in anothe......
-
X v Y (Adult Parental Order)
...to children (post, paras 55–57).The following cases are referred to in the judgment:A (Legal Parenthood: Written Consents), In re [2015] EWHC 2602 (Fam); [2016] 1 WLR 1325; [2016] 1 All ER 273; [2017] 1 FLR 366A v C [2016] EWFC 42; [2017] 2 FLR 101A v P [2011] EWHC 1738 (Fam); [2012] Fam 18......