Cautionary Judgment For People Embarking On Fertility Treatment Outside The UK

For couples desperate to have children, embryo adoption provides much-needed hope that the dream of a family can be realised.  However, a recent case has highlighted that fertility clinics in the UK may not be properly informing couples of their status regarding legal parenthood should the couple choose to embark on embryo adoption treatment abroad.

In Re Z (Embryo Adoption: Declaration of Non-Parentage) [2018] EWFC 68, Justice Theis granted a declaration of non-parentage where fertility treatment undertaken at a clinic in Spain fell outside the provisions of the Human Fertilisation and Embryology Act 2008 (HFEA 2008).

What is embryo adoption?

When receiving IVF treatment, as many embryos as possible are created, as the process of retrieving and fertilising the eggs is physically demanding and highly expensive.  Embryos which are not transferred to the woman’s womb are frozen.  These can be donated to another couple or for research.  If a couple becomes pregnant courtesy of embryo adoption, the child will not be genetically related to them.

What were the facts of the case?

An unnamed couple sought fertility treatment at a UK clinic.  The male had had a vasectomy and the female was told that because of her age, it was unlikely any suitable eggs would be retrieved.  Embryo adoption was suggested, and the UK clinic advised the couple to consult a Spanish clinic regarding the procedure.

A cryopreserved embryo which had been donated by another couple was transferred into the mother in a clinic in Spain, resulting in a pregnancy.  The mother believed it was both parties’ intentions that the male would be the father of the child and he was registered on the birth certificate.

Six months after the child’s birth the couple parted.  The mother sought child maintenance from the father.  He claimed he was not liable as he was not the biological father.  Following the separation, he did not have any contact with the baby.

After consulting a Solicitor, the mother sought a court order that her former partner was not the father of the child, a move which would entitle her to amend the birth certificate.

What was the Court’s decision?

The meaning of the term ‘mother’ is defined by the HFEA 2008, section 33:

Meaning of “mother”

(1) 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.

(2) Subsection (1) does not apply to any child to the extent that the child is treated by virtue of adoption as not being the woman’s child.

(3) Subsection (1) applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or the sperm and eggs.

Under section 33, the woman was the ‘mother’ of the child, even though they were not biologically related.  Under section 35 of the HFEA 2008, a man who is married to the mother is the father of an embryo which is transferred, unless he can prove he did not consent to the transfer.

Because the couple were unmarried, the man could only be a legal parent if the conditions listed in the HFEA 2008, sections 36 and 37 were met.  As the embryo transfer occurred in a Spanish clinic rather than a UK clinic, the conditions were not met.  A further condition to confer parenthood on the father is that both partners must each give the person responsible for the treatment (at the licensed clinic) a signed document that states the male partner is to be treated as the father (or female partner as the parent) of any child resulting from treatment.  This consent was not provided.

The judge ruled that the male partner was not a parent of the child for the purposes of the Child Support Act 1991 or Children Act 1989 (CA 1989), either biologically or by an operation of law.  Parental responsibility was not acquired by naming the male partner on the birth certificate.

What this case means for unmarried couples considering fertility treatment abroad

Mrs Justice Theis said it was “noteworthy” that neither the parents nor the UK clinic had given much thought to the legal implications surrounding parenthood when deciding to pursue treatment overseas.  She, therefore, directed that the judgment should be brought to the attention of the relevant authorities, including the Department of Health and the Human Fertilisation and Embryology Authority.

UK clinics need to take responsibility to explain the legal status of parenthood should fertility treatment be undertaken abroad.  Counselling should be offered in all cases and information provided about how parenthood can be obtained.  In the case outlined in this article, the male partner could have achieved legal parenthood via a parental order or adoption.

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